Honeywell International, Inc. v. United States

MEMORANDUM OPINION AND ORDER CONSTRUING CERTAIN CLAIMS OF UNITED STATES PATENT NO. 6,467,914

BRADEN, Judge.

In the decade following the United States Supreme Court’s unanimous affirmance of the landmark en banc decision in Markman v. Westview Instruments, Inc., 52 F.3d 967, 978-79 (Fed.Cir.1995) (“Markman F), aff'd, 517 U.S. 370 , 116 S.Ct. 1384 , 134 L.Ed.2d 577 (1996) (“Markman IF), the United States Court of Appeals for the Federal Circuit has devoted a great deal of effort to provide federal trial courts with a workable analytical framework to construe the meaning of a patent’s claims that is faithful to 35 U.S.C. § 112 and affords the court an opportunity to consider relevant, but reliable, evidence, in a wide range of diverse and increasingly complex applications of mechanical, electrical, chemical, computer, pharmaceutical, bio, and nano technology.

From the court’s reading of controlling appellate precedent, intrinsic evidence has been endorsed as most relevant and reliable to establish the metes and bounds of the property right conveyed by the privilege of the patent grant. Extrinsic evidence has been determined to be useful to identify the *403 academic and industry credentials of “one skilled in the art,” akin to the “reasonable man” in the tradition of tort law. If the court must resort to extrinsic evidence to avoid determining that a claim is indefinite, only the most probative and reliable of such evidence should be considered-and, with caution.

In this case, the court determined that it was unnecessary to consider extrinsic evidence to construe the language of the patent claims at issue, in most instances. See Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998) (internal citations omitted) (“The construction that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construction.”). In only one claim, where extrinsic evidence was considered, the court was able to construe the disputed term by referring to prior art and was not dependent on technical treatises, technical dictionaries, nor the parties’ experts.

In light of the multitude of issues addressed herein, an outline of this Memorandum Opinion and glossary of selected acronyms follow:

OUTLINE

I. THE RELEVANT TECHNOLOGY.

A. Night Vision Aids.

1. The Electromagnetic Spectrum.

2. Night Vision Goggles.

B. Cockpit Displays.

1. Cathode Ray Tubes.

2. Liquid Crystal Displays.

3. Color.

C. Characteristics And Types Of Optical Filters.

D. The ’914 Patent.

II. FACTUAL AND PROCEDURAL BACKGROUND.

III. DISCUSSION.

A. Jurisdiction.

B. Standing.

1. Plaintiff.

2. Intervenor.

C. Controlling Appellate Precedent Concerning Construction Of Patent Claims.

1. A Federal Trial Judge Must First Attempt To Construe Ambiguous Claim Terms Utilizing Intrinsic Evidence.

a. Claim Language.

b. Specification Explanation And Definition.

c. Prosecution History.

2. Only In Limited Circumstances May A Federal Trial Judge Construe Claim Terms Utilizing Extrinsic Evidence.

a. Prior Art.

b. Technical Treatises And Technical Articles.

c. Expert Testimony.

d. Scientific Or Industry Specific Dictionaries.

e. Inventor Testimony.

3. A Federal Trial Court Should Construe Claims To Preserve A Patent’s Validity Only Where All Other Tools Of Claim Construction Are Exhausted.

4. The Import Of Phillips v. AWH Corp., 376 F.3d 1382 (Fed.Cir.2004).

D. Construction Of Certain Claims Of United States Patent No. 6,467,914.

1. “Display System.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

*404 b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. Specific Precedent Governing Construction Of A Patent’s Preamble.

e. The Court’s Construction Of “A Display System For Use In Association With A Light Amplifying Passive Night Vision Aid And A Local Color Display, Including A Local Source Of Light, Comprising” In This Case.

2. “Local” And “Color Display.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Local Color Display” In This Case.

i. In The Preambles To Claim 1 And Claim 2.

ii. In Claim 1(a).

iii. In Claim 2(a).

3. “Local” And “Source of Light.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Brief.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Brief.

d. The Court’s Construction Of “Local Source Of Light” In This Case.

4. “Optical Filter” And “Filter.”

5. “Filters” And “Filtering.”

6. “Filters Light From The Local Color Display.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Filters Light From The Local Color Display” In This Case.

7. “Notch Filter.”

*405 a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Notch Filter” In This Case.

8. “Passes.”

9. “Color Band[s].”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Color Bands” In This Case.

10. “Predetermined Color Bands.”

11. “Red Color Band.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Red Color Band” In Thi s Case.

12. “Predetermined Red Color Band.”

13. “Substantially Blocks.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Substantially Blocks” In This Case.

14. “First,” “Second,” “Third,” “Fourth,” And “Filter.”

15. “Blue Color Band.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

*406 iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Blue Color Band” In This Case.

16. “Green Color Band.”

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

ii. At The Claim Construction Hearing.

iii. Post-Claim Construction Hearing Briefs.

d. The Court’s Construction Of “Green Color Band” In This Case.

17. “Narrowband Of The Red Color Band.”

IV. CONCLUSION.

GLOSSARY OF SELECTED ACRONYMS

AGC Automatic Gain Control

ANVTS Aviators’ Night Vision Imaging System

CIE Commission International l’Eclairage or International Commission on Illumination

CRT Cathode Ray Tube

IEEE Institute of Electrical and Electronics Engineers, Inc.

IPL Instrument Panel Lighting

JEDEC Joint Engineering Display and Electronic Committee

LCD Liquid Crystal Display

MCP MicroChannel Plate

nm Nanometer

NVG Night Vision Goggles

NVIS Night Vision Imaging System

RGB Red Green Blue

SED Spectral Energy Distribution

A Wavelength or the distance between successive peaks of an electromagnetic wave.

nu, v Frequency or the number of complete cycles of electromagnetic radiation completed each second.

* sis * * * *

I. THE RELEVANT TECHNOLOGY.

In 1973, a second-generation of Night Vision Goggles (“NVG”) was developed by the United States Army to provide helicopter pilots with a brighter view at night of underlying terrain to allow them to fly at low levels. See January 24, 2005 Technology/Industry Primer (“Jt.Primer”) at 3; 1 see also November 22, 2004 Direct Testimony and Expert Report of Dr. Harry Lee Task (“PMX35”) U 8 at 4. NVGs, however, were very sensitive to cockpit lighting, warning lights, displays, and particularly to light of longer wavelengths in the visible spectrum and infrared radiation. See Jt. Primer at 6-8; see also PMX 35 119 at 4. In particular, *407 NVGs’ sensitivity to red light created numerous problems that were known prior to the October 10, 1985 filing of the patent at issue in this case, including the fact that nearby light sources in a cockpit could overwhelm the sensor elements and interrupt NVG functioning or amplify reflections from the cockpit lights, causing the pilot to see confusing images. Id.

Many techniques were developed by the military and private companies to try to solve the incompatibility between the NVG and aircraft lighting and cockpit displays. See PMX 35 HU 8-12 at 4-6. In the 1980’s, the United States Army began to utilize an Aviation Night Vision Imaging System (“AN-VTS”) goggles with a third-generation image intensifying tube that was much more sensitive to light, i.e., ranging from approximately 450 nanometers (“nm”) to 930 nm, instead of 400 nm to 700 nm. See Jt. Primer at 3; see also PMX 35 Till 9-13 at 4-7. As a result, the visible range below 580 nm could be used for cockpit lighting and display since light in that range, in large part, was invisible to NVGs and allowed the pilot to see outside the aircraft. See PMX 35 1113 at 6-7.

A. Night Vision Aids.

1. The Electromagnetic Spectrum.

The electromagnetic spectrum (“spectrum”) describes the range of electromagnetic waves that transports energy, both in electric and magnetic fields. See Jt. Primer at 3. Energy from cosmic rays have the shortest wavelengths; electrical oscillations have the longest wavelengths. Id. “Visible spectrum” or light is the portion of the spectrum located between the ultraviolet light region and the infrared region, as depicted below:

[[Image here]]

Id. at 4.

Light is characterized by wavelength and frequency. Id. Wavelength, referred to by the symbol lambda, <fc, is the distance between successive peaks of an electromagnetic wave. Id. Frequency referred to by the symbol nu, c, is the number of complete cycles of electromagnetic radiation completed each second. Id. Wavelength and frequency are inversely related, i.e., light with a higher frequency has a shorter wavelength; light with a shorter frequency has a longer wavelength. Id. at 4-5. Wavelength times frequency equals the speed of light. Id. at 5. Light and infrared radiation customarily are described in terms of wavelength. Id.

*408 2. Night Vision Goggles.

NVGs are sensitive to visible light and infrared radiation regions of the electromagnetic spectrum. Id. at 5. An unaided human eye only can see light within the visible region of the electromagnetic spectrum, which has a narrow range, as shown above. Id. The human eye adapts to different lighting environments and has two distinct sensitivity curves, as illustrated below:

[[Image here]]

Id. at 6.

The peak sensitivity of the human eye drifts toward shorter wavelengths of light in extreme darkness, known as scotopic vision, which is rarely used in human activities. Id. at 6. Colors are seen by day vision, known as photopic vision. Id. Radiant energy, originating from the sun during the day and the stars or moon at night, is the electromagnetic energy that the human eye detects. Id. At night, there is less visible light present than during the day, so the human eye has extreme difficulty detecting the radiant energy that remains. Id.

Night vision aids enable the user, generally a pilot, to see objects at night by amplifying the very low levels of radiant energy from the visible and infrared spectrum. Id. Some night vision aids are capable of amplifying the radiant energy reflected from an object at night in overcast conditions. Id.

NVGs utilize a “two-step energy conversion process” to enable the user to observe very low levels of light and infrared radiation and convert the latter into visible light: first, by converting photons into electrons and amplifying the electrons; and second, by converting the amplified electrons back into photons, in visible light for the user. Id. at 7-8. A schematic of a typical night vision aid is reproduced below:

[[Image here]]

*409 Id. at 7.

Low-level radiation first enters the NVG at an objective lens that focuses low levels of light and infrared radiation onto an input window of an intensifier tube. Id. The intensifier tube consists of a photocathode and a microchannel plate (“MCP”) that amplifies light and infrared radiation. Id. The photo-cathode converts photons into electrons. Id. Electrons are then emitted from the cathode and received at the input surface of the MCP, generally constructed of a honeycomb-like plate of many hollow tubes fused together. Id. Each electron passing through the tube frees other electrons, creating tens of thousands of electrons that exit the tube for each one that entered the tube. See Jt. Primer at 7-8.

Exiting electrons strike a phosphor screen that acts as the reverse of the photocathode and converts the electrons back into photons of visible light at a higher intensity than the input photons. Id. at 8. If an observer uses an ocular lens, the light emitted appears as a green image. Id. This energy is increased by a factor of 10,000 to 20,000 at maximum sensitivity and is known as “gain” or “image intensification” of the NVGs. Id. Although NVGs amplify low level light and infrared radiation by a factor of 10,000 to 20,000, they also amplify normal level and bright lights, such as streetlights or cockpit lights, by the same factor, which can damage the NVGs. Id. To prevent this problem, ANVIS goggles were developed that have a feature known as “automatic gain control” to govern image intensification within the MCP. Id. This reduction of intensification, however, affects the ANVIS goggles’ entire field, thereby preventing the user from seeing dimly illuminated objects when normal level and bright lights are introduced. ANVIS goggles also are sensitive to light from about 540 nm to 910 nm. See Jt. Primer at 8. To address this issue, ANVIS goggles utilize a “minus blue” filter that reduces the sensitivity of the goggles to the longer wavelengths. Id.

B. Cockpit Displays.

Aircraft use a variety of displays in the cockpit, such as cathode ray tubes (“CRTs”) and liquid crystal displays (“LCDs”). Id. at 9. Both, however, can generate or reflect light that interferes with the operation of the NVG. Id. at 9-11.

1. Cathode Ray Tubes.

CRTs are “picture tube for television” technology used in a broad range of commercial and military applications, including aircraft displays. Id. at 9. CRTs operate by receiving an input that is processed by generating electron beams that strike a screen coated with one or more layers of phosphor, wherein each layer can generate one or more colors in a color display. Id. When an electron beam strikes a particular phosphor, a phosphor dot on the screen is excited to emit light of a certain color. Id. at 10. Full color CRTs typically have three phosphors that correspond to the three most common primary colors of the display: red, green and blue. Id. There are different sets of primary colors, each of which can produce many more colors in the visible spectrum. Id. Prior to the advent of flat screen technologies, every computer monitor and television used a CRT, similar to that shown below:

*410 [[Image here]]

Id. at 9.

2. Liquid Crystal Displays.

LCDs are used in many commercial applications, including aircraft cockpit displays. Id. In transmissive LCDs, light is generated at the back of the display using a fluorescent tube, known as an LCD backlight. Id. This tube has a phosphor coating on the inside that emits light when excited by mercury vapor, which produces color, as determined by the chemical characteristics of the phosphors. Id. Color is then passed through an array of liquid crystal picture elements or pixels. Id. Each liquid crystal pixel also acts as a “shutter” that either passes or blocks the light to varying degrees. Id. at 10-11. A LCD is comprised of two polarizing filters and a cavity containing a liquid crystal compound. Id. at 10. When electricity is not applied to a pixel, the backlight is polarized by the first polarizer and is placed to permit light to pass through the second polarizer. Id. In a color LCD, each pixel has three subpixels that correspond to the three primary colors of the display. Id. at 11. When electricity is applied, the two polarizers act together to block the backlight, as shown below:

*411 [[Image here]]

Id.

3. Color.

Color is a psychological response to different wavelengths of light based on the human perception. Id. at 12. How color is perceived depends upon the amount of energy light has at each wavelength. Id. Spectral energy distribution (“SED”) shows the relative intensity of light at each wavelength. Id. The SED, however, is not useful for identifying specific colors. Id. In 1931, the Commission International 1’Eelairage or International Commission on Illumination (“CIE”) developed a system for identifying specific colors by measuring the chromaticity of light. The CIE system, which uses the diagram reproduced below, is well known and widely accepted. Id.

*412 [[Image here]]

Id. at 13.

All existing colors can be represented by a single point on the CIE Diagram, as plotted on chromaticity coordinates (x,y). Id. The upside down u-shaped perimeter of the diagram represents the 100% saturated, or pure spectral colors. Id. Colors, however, desatu-rate or become more and more pastel toward the center, until they are white. Id. Every color can be correlated to a dominant wavelength or complimentary dominant wavelength. Id.

C. Characteristics And Types Of Optical Filters.

Optical filters are devices that selectively pass or block electromagnetic radiation. Id. at 14. Whether radiation is passed or blocked is based upon a transmissive spec-tram that shows wavelengths that have high transmittance (passing) and low transmittance (blocking). Id. Typically, filters derive their names by the way the transmittance graph looks. Id. For example, filters that pass shorter wavelengths and block longer wavelengths are called “low pass filters.” Id. FHters that pass longer wavelengths and block shorter wavelengths are “high pass filters.” Id.

A combination of optical filters wiH create a filter with properties that are cumulative, ie., the combination of a “highpass filter” that passes light above 500 nm and a “low-pass filter” that passes light below 600 nm wül result in light being emitted in the 500-600 nm range. Id. The transmittance values of filters are multiplied, wavelength by wavelength, to calculate the cumulative effect. Id.

D. The ’914 Patent.

The ’914 patent 2 describes the technical problem in 1985 of having “a night vision aid, such as ANVIS goggles, be operable in a cockpit or similar environment in which a full color display is illuminated.” ’914 patent, col. 2, H. 2-5.

The ’914 patent consists of three claims. Claims 1 and 2 are independent claims and *413 Claim 3 is dependent upon Claim 2. See ’914 patent, col. 5,1. 30 — col. 6,1. 31.

Claim 1 describes:

A display system for use in association with a light amplifying passive night vision aid and a local color display including a local source of light, comprising:

(a) a first optical filter that filters light from the local color display, wherein said first optical filter is a notch filter that passes light comprising predetermined col- or bands including a predetermined red color band and that substantially blocks light associated with color bands other than said predetermined color bands; and

(b) a second optical filter that filters light at the night vision aid, wherein said second optical filter substantially blocks light of at least said predetermined red color band.

’914 patent, col. 5,1. 30 — col. 6,1.11.

Claim 2 describes:

A display system for use in association with a light amplifying passive night vision aid and a local color display including a local source of light having blue, red, and green color bands, comprising:

(a) a plurality of filters at the local color display including (1) a first filter for filtering the blue color band of the local source of light; (2) a second filter for filtering the green color band of the local source of light; and (3) a third filter for filtering the red color band of the local source of light and passing a narrowband of the red color band; and

(b) a fourth filter which filters light at the night vision aid, said fourth filter cooperating with said plurality of filters to substantially block at least said narrowband of the red color band from being admitted to the night vision aid.

’914 patent, col. 6,11.12-28.

Claim 3 describes:

The display system of claim 2 wherein said narrowband of the red color band is substantially five to twenty nanometers wide.

’914 patent, col. 6,11. 29-31. ,

II. FACTUAL AND PROCEDURAL BACKGROUND. 3

Honeywell Intellectual Properties, Inc. is the owner of the ’269 patent application and ’914 patent and Honeywell International, Inc. (hereinafter collectively, “Honeywell”) is the exclusive licensee of the ’269 patent application and ’914 patent. The issuance of the patent, however, was withheld because of a Secrecy Order, issued on April 2,1986.

On December 18, 2002, Honeywell filed a Complaint in the United States Court of Federal Claims asserting essentially three claims against the Government allegedly for violating: (1) the Invention Secrecy Act of 1951, 35 U.S.C. §§ 181-88 , as a result of the Government’s issuance of an April 2, 1986 Secrecy Order concerning Honeywell’s ’914 *414 patent and related ’269 application; 4 (2) the Fifth Amendment to the United States Constitution, as a result of the Government’s taking of Honeywell’s ’914 patent and related ’269 application; and (3) 28 U.S.C. § 1498 (a), as a result of the unlicensed, or otherwise unlawful, use of the ’914 patent by or on behalf of the Government. See Compl. at HH 53-75. The case was assigned to the Honorable Emily C. Hewitt.

On May 23, 2003, the Government filed a Motion to Issue a Notice to Third Party Lockheed Martin, pursuant to 41 U.S.C. § 114 (b) and RCFC 14(b). On June 5, 2003, the court granted the Government’s Motion. On June 16, 2003, the Government filed a First Answer.

On August 15, 2003, this case was assigned to the undersigned judge. On September 3, 2003, Lockheed Martin filed an Unopposed Motion to Intervene, insofar as Honeywell alleged that the C-130J Hercules aircraft, which is manufactured by Lockheed Martin, incorporated technology claimed in the ’914 patent. See Int. Motion at 1. On September 9, 2003, Honeywell filed a Response to Lockheed Martin’s Motion to Intervene. On September 12, 2003, both Lockheed Martin and the Government filed a Reply to Honeywell’s Response. On September 17, 2003, the court issued a revised Order granting Lockheed Martin’s Motion to Intervene with respect to only Counts III and IV of the Complaint. On September 17, 2003, the court entered an Order setting discovery and pretrial deadlines agreed to by the parties. On that date, Lockheed Martin also filed an Answer in response to the December 18, 2002 Complaint.

On February 10, 2004, the Government filed an Unopposed Motion for Entry of a Stipulated Protective Order. On February 20, 2004, the court granted the Unopposed Motion and entered a Stipulated Protective Order. On April 30, 2004, the court entered an Order setting the date of a claim construction hearing for December 6-10, 2004, which subsequently was rescheduled to November 29, 2004-December 3, 2004 by a May 14, 2004 Order. On July 9, 2004, the court also issued an Order granting Honeywell’s Unopposed Motion for Extension of Time of Certain Discovery Deadlines. On July 16, 2004, the court convened a telephone status conference to discuss discovery matters and questions concerning the claim construction hearing. At the invitation of the court, on July 23, 2004 and July 29, 2004, Lockheed Martin and Honeywell forwarded the court letters expressing suggestions about that hearing. On July 23 and 30, 2004, and August 5 and 17, 2004, the court convened additional telephone status conferences to discuss pending discovery matters. On August 25, 2004, the court vacated the September 17, 2003 and May 14, 2004 Orders and established a revised Scheduling Order setting a new date for the claim construction hearing for January 27, 2005, later re-set for January 31, 2005. In addition, on August 25, 2004, the court issued a Claim Construction Procedures Order proposed by the parties. On August 26, 2004, the court convened another telephone status conference to discuss discovery matters. On August 27, 2004, Lockheed Martin filed a Motion to Compel Honeywell’s responses to Interrogatories 3 and 4. On August 30, 2004, Lockheed Martin filed a- Motion to Compel Honeywell’s response to Interrogatory 17.

On September 13 and 23, 2004, the court convened additional telephone status conferences to discuss discovery matters. On October 4, 2004, Lockheed Martin filed a Motion to Compel Honeywell to respond to requests for admission. On October 5, 2004, the court convened a telephone status conference with the parties. On October 6, 2004, the court issued an Amended Claim Construction Procedures Order and an Amended Scheduling Order setting another telephone status conference with the parties for October 12, 2004.

On October 15, 2004, Honeywell filed an Infringement Claim Chart. On October 18, 2004, Honeywell requested entry of a First *415 Amended Protective Order and opposed Lockheed Martin’s requests for admission. On October 27, 2004, Lockheed Martin filed a Reply. At the November 1, 2004 telephone status conference, the court was advised that the dispute regarding requests for admission had been resolved to the satisfaction of the parties. Accordingly, on November 2, 2004, the court entered an Order to that effect.

On November 10, 2004, defendants filed a Joint Response Chart that asserted Claims 1, 2, and 3 of the ’914 patent were invalid, due to:

(1) the existence of documentary and non-documentary evidence that rendered Honeywell’s claims obvious; (2) the insufficiency of the description of the invention to show Honeywell’s possession of it; (3) a failure by Honeywell to disclose the best mode for practicing the claimed invention; (4) Honeywell’s derivation of the invention from others; (5) the introduction of impermissible new matter to the ’914 patent in Honeywell’s June 24, 2002 amendment; (6) the misjoinder of inventorship, which led to the granting of the ’914 patent (the Government did not join in this defense); (7) the violation of Honeywell’s duty to disclose to the second patent examiner the existence of prior art that was material to the PTO granting the ’914 patent (the Government did not join in this defense).

On November 15, 2004, Honeywell submitted a Proposed Claim Construction Statement that set forth: (1) Honeywell’s proposed claim constructions, including any special or uncommon meanings of words or phrases used in the ’914 patent; (2) references from the specification that support, describe, or explain each of the claim elements and/or Honeywell’s proposed construction; (3) material in the prosecution history that describes or explains each of the elements of the claim; and (4) extrinsic evidence, where necessary.

On November 16, 2004, the court entered a First Amended Protective Order reflecting the changes negotiated by the parties. On November 16, 2004, defendants filed a Motion to Amend the Defendants’ Joint Response Chart. On November 22, 2004, defendants filed a Joint Proposed Claim Construction Statement, together with a November 22, 2004 Expert Report of Dr. Harry Lee Task.

On December 3, 2004, the court entered an Order setting a status conference on December 17, 2004 and amending the due date for the Joint Claim Construction Statement to December 14, 2004. On December 16, 2004, the court entered an Order granting Lockheed Martin’s Motion to Amend Defendants’ November 8, 2004 Joint Response Chart. Following the December 17, 2004 status conference, the court entered a Second Amended Protective Order. On December 21, 2004, the parties filed a Joint Claim Construction Statement.

On December 23, 2004, Honeywell filed an Opening Claim Construction Brief seeking the court’s construction of certain claims in the ’914 patent, together with a four volume appendix — Exhibits 1-39 (PA1-PA514). On January 14, 2005, the Government and Lockheed Martin filed Defendants’ Claim Construction Brief, together with five volumes of Exhibits 1-35 (DE1-DE1036). 5 On January *416 21, 2005, Honeywell filed a Reply Claim Construction Brief, together with a Supplemental Appendix Ex. 40-49 (PA515-558). On January 27, 2005, the parties filed a Supplement to the Joint Claim Construction agreeing to the construction of the following terms: “optical filter” and “filter,” when used as nouns; “filter” and “filtering,” when used as verbs; and “passes,” when used as a verb.

The court held a claim construction hearing from January 31, 2005-February 3, 2005 (“TR 1-1138”). 6 In addition to argument of the parties, the court considered the reports of the parties’ experts as direct testimony and heard cross examination and re-direct.

The court has determined that Honeywell’s expert, Lawrence E. Tannas, Jr., and his testimony, met the qualifications of Fed. R.Evid. 702-03. See PMX 34 (Nov. 15, 2004 Initial Expert Report of Lawrence E. Tan-nas, Jr.); PMX 36 (Dee. 1, 2004 Rebuttal Expert Report); PMX 37 (Dec. 7, 2004 Supplement to Expert Reports); see also TR at 772-958; 1128-1135. Mr. Tannas has a B.S. and M.S. degree in Engineering from the University of California. See PMX 37 at Ex. 1. Mr. Tannas has had more than 25 years of “hands-on” experience with avionic cockpit displays, including research and development, manufacturing, testing, and human factor analysis. See PMX 34111 at 2. In addition, Mr. Tannas worked for Honeywell in the early 1960’s during which time he invented the backup reentry guidance display for the Apollo Reentry Vehicle, which was used in the Apollo 13 mission. Id. 113 at 2. Subsequently, Mr. Tannas was employed at Martin Marietta Corp. where he developed a cockpit for the SV5 Manned Space Vehicle. Id. Pri- or to starting his own firm in 1999, Mr. Tannas also was employed by Rockwell International where he developed the engineering prototype of a liquid crystal display for the world’s first full-scale LCD production. Id. Mr. Tannas currently is President of Tannas Electronics, an entity involved in con-suiting, lecturing, and research. Id. H 5 at 3. In addition, he is President of Tannas Electronic Displays, Inc., which is involved in research, development, and licensing of intellectual property for preparing LCDs for avionics. Id.

Mr. Tannas has served as a consultant or lecturer for Fortune 500 companies, several universities, and federal agencies, including the Federal Aviation Administration, National Aeronautics and Space Administration, United States Air Force, United States Navy, National Science Foundation, Defense Advanced Research Projects Agency, and the Central Intelligence Agency. Id. H2 at 2. Mr. Tannas also is an inventor or co-inventor of eight patents issued by the USPTO. Id. H 3. He has authored or co-authored numerous publications, including serving as author/editor of Flat-Panel Displays and CRTs (Van Nostrand Reinhold Co., 1985) and Flatr-Panel Display Technologies, Japan, Russia, Ukraine, and Belarus (Noyes Publications, 1995). Id. H 4. In addition, Mr. Tan-nas has been a coordinator and lecturer on flat-panel displays, human factor analysis, and advance cockpit displays at University of California at Los Angeles and other universities. Id. H 4 at 2-3.

Mr. Tannas was retained by Honeywell to provide an opinion as to the meaning of the following words or phrases in the ’914 patent: “color display,” id. 1112 at 5; “source of light,” id. If 13; “local” with “color display,” id. 1114 ; “local” with “source of light,” id. H14 at 5-6; “optical filter,” id. 1115 at 6; “notch filter,” id. U16; “color band,” id. 1117 at 6-7; “predetermined color band,” id. H 18 at 7; “substantially blocks,” id. 1119 ; “filter,” id. 1120 ; “narrow band of the red color band,” id. H 21 at 7-8.

In addition to testifying about proposed construction of the above-referenced terms, Mr. Tannas advised the court that he intended to testify about the “background of the patented [’914] invention, including providing *417 relevant information concerning the technologies and industry to which the [’914] patent relates, the prior art, and the problems solved by the invention.” Id. 1122 at 8.

The court also has determined that the Government’s expert, Dr. Harry Lee Task met the qualifications of Fed.R.Evid. 702-03. See PMX 35 (Nov. 22, 2004 Expert Report of Harry Lee Task, Ph.D.); see also TR at 968-1127. Dr. Task has had more than 27 years of “hands-on” experience with research and development in helmet mounted displays, display image quality, vision assessment in space, night vision goggles, night vision goggle compatible lighting, and vision through aircraft transparencies. See PMX 35 113 at 2. Dr. Task has a B.S. degree in Physics from Ohio University, a M.S. in Physics from Purdue University, a M.S. and Ph.D. in Optical Sciences from the University of Arizona Optical Sciences Center, and a M.S. in Management of Technology from the Massachusetts Institute of Technology Sloan School of Management. Id. 112 at 1-2.

In 1971, Dr. Task was hired by the United States Air Force Aerospace Medical Research Laboratory (“AMRL”) as an optical physicist to work on helmet mounted displays and display image quality. Id. 113 at 2. In 1989, Dr. Task became the Chief Scientist for AMRL and served in that capacity until 1991. Id. In 1997, Dr. Task became the Senior Scientist for Human Systems Interface for the United States Air Force Research Laboratory, a position equivalent to a one-star General. Id. In June 2001, Dr. Task retired from the United States Air Force, but has continued technical work as a consultant. Since his retirement in June 2001, Dr. Task has been an independent consultant and President and Treasurer for Opto-Metrix, Inc., a Subchapter “S” corporation that makes and sells optical protractors. Id. 111 at 1.

Dr. Task also is the inventor or co-inventor of approximately 45 patents issued by the USPTO, author or co-author of over 100 technical-research publications, a member of relevant professional associations, including the Society for Information Display, and a Fellow of the American Society for Testing and Materials. See PMX 35 114 at 2-3. He has been retained as an expert in vision and visibility in approximately a dozen cases involving vehicle accidents at night or dusk, however, none concerned NVGs or NVG compatible lighting. Id. 115 at 3.

Dr. Task was retained to provide an opinion as to the meaning of the following words or phrases in the ’914 patent: “display system,” id. H15 at 8; “local” with respect only to “passive night vision aid,” id. at Hit 17-18 at 8; “display,” id. Hit 19-20 at 4-5; “color display,” id. 1121 at 9; “local source of light,” id. 111122-23 at 9; “notch filter,” id. 111124-25 at 9; “narrowband,” id. H26 at 10; “color band,” id. HH 27-29 at 10-11; “red color band,” id. Vil 30-31 at 11-12; “predetermined red color band,” id. HH 32-34 at 12; “blue color band,” id. 1135 at 13; “green color band,” id. K 36 at 13; and “substantially blocks,” id. KH 37-42 at 13-15.

In addition, Dr. Task testified about the background associated with the technical areas of the ’914 patent, including the United States Army’s 1973 adoption of a second-generation NVG and designation of the AN/ PVS-5A as an “interim” pilot’s aid for helicopter flying at night. See PMX 35 H 8 at 4. Dr. Task admitted that NVGs were limited because of their incompatibility with aircraft lighting and displays. Id. Dr. Task explained that the problem was too much light in the cockpit, to which the NVGs were “sensitive.” Id. H 9 at 4. In addition, pilots trying to look outside the helicopter would see only reflections of the inside of the cockpit, as opposed to the view outside the helicopter. Id. On a more technical basis, the wavelengths that the NVGs were sensitive to (and amplified) included the entire visible spectrum (i.e., 400-700 nm) and a small portion of the near infrared wavelengths, i.e., 700-900 nm. Id. 119 at 4.

Dr. Task advised the court that most cockpit fighting and displays utilize incandescent fight bulbs that emit a considerable amount of infrared energy compared to energy to which the human eye is sensitive. Id. It 10 at 5. This created an issue since most incandescent lights in the cockpit emitted far more “bad” light than “good” fight, to which the eye is sensitive. Id. Even when the NVGs were sensitive, “the filters typically did their *418 job with respect to producing the desired color, but they also passed the invisible-to-the-eye infrared light that was incompatible with the NVG operation.” Id. Therefore, in order to create a display with phosphors compatible with NVGs, longer wavelength side bands needed to be blocked by a filter. Id. H11 at 5-6. To accomplish making a display with a phosphor compatible with NVGs several techniques were developed, including: placing filters over displays to block objectionable infrared and red wavelengths, but pass blue and green wavelengths; incandescent lights in the cockpit were turned off and the instrument panel utilized sources of light that did not emit objectionable light; and a filter passing only shorter wavelengths were put over white phosphor displays to block those wavelengths. Id. 1112 at 6. The United States Army also developed an Aviation Night Vision Imaging System (“AN-VIS”) night vision goggles in the early 1980s that used an image intensified tube that was sensitive in the 450-930 nm range, rather than a full visible spectrum. Id. H13 at 6. When a “long pass” filter was used on the lens in front of the NVG to reduce the sensitivity of the ANVIS to shorter visible wavelengths, the NVG became sensitive to wavelengths of 580-930 nm. Id. 1113 at 7. As a result, the visible range of below approximately 530 nm was used for cockpit lighting and display since light in this range was invisible to the NVGs allowing visibility outside the cockpit. Id. H 14 at 7. Figure 1, the preferred embodiment of the ’914 patent, teaches a significant overlap between the wavelengths (including yellow, orange, and red wavelength bands) sensitive to the human eye and the ANVIS, i.e., approximately 580-700 nm. Id. This was the state of the NVG technology in 1985, at the time the ’914 patent was filed. Id. K15 at 7 (quoting ’914 patent specification describing the problem in 1985 that the ’914 patent addressed) (“It is ... desired that a night vision aid such as ANVIS goggles be operable while a full color display is illuminated. It is therefore desired to prevent light which originates at the full color display from overwhelming the night vision aid.”).

Following the claim construction hearing, on February 28, 2005 and March 3, 2005, the court convened telephone status conferences, pursuant to which the court issued a March 11, 2005 Scheduling Order regarding post-hearing briefs and discovery deadlines regarding the August 1-12, 2005 trial.

On March 30, 2005, Lockheed Martin filed a Motion to Supplement the Record with three contracts between Lockheed Martin and the Government to support Lockheed Martin’s intervention as a matter of right.

On April 1, 2005, Honeywell filed an Opening Post-Hearing Brief Regarding Claim Construction; the Government filed a Post-Hearing Claim Construction Brief; and Lockheed Martin filed a Post-Markman Hearing Brief. On April 7, 2005, the court granted Lockheed Martin’s March 30, 2005 Motion to Supplement the Record.

On April 15, 2005, Honeywell filed a Posb-Hearing Reply Brief Regarding Claim Construction; the Government filed a Posb-Hearing Claim Construction Reply Brief; and Lockheed Martin filed a Reply to Honeywell’s Opening Post-Hearing Brief Regarding Claim Construction. In addition, on April 15, 2005, the parties filed a Stipulation agreeing to the meaning of six of the contested claims, which are set forth herein.

On April 20, 2005, Honeywell filed a Motion for Leave to Supplement the Record Regarding Claim Construction of the term “red color band” (“4/20/05 Honeywell Brief’), together with an April 18, 2004 Declaration of Mark Koehn, Esquire and April 19, 2004 Declaration of Lawrence E. Tannas, Jr. and Exhibits 1-13 (PEI-155). 7 Honeywell’s Motion requested that the record include the Draft Standard for Color Active Matrix Liquid Crystal Displays in U.S. Military Aircraft, WL-TR-93-1177, Darrel Hopper June *419 1994 (Koehn Ex. 1) and Dr. Hopper’s deposition testimony related thereto. On May 4, 2005, the Government filed a Brief in Response to Honeywell’s Motion to Supplement, together with three volumes of supporting Exhibits (“Gov’t Supp. Resp.”). The Government did not object to Honeywell’s request to supplement the record, but requested counter-designations.

On May 4, 2005, Honeywell also filed a letter to bring the recent decision of the United States Court of Appeals for the Federal Circuit in Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367 (Fed.Cir.2005) to the attention of the court. On May 5, 2005, Honeywell filed a Supplement to the October 15, 2004 Claim Chart (“5/5/05 Honeywell Supp. to Claim Chart”) to amend: Section II of the Claim Chart to clarify that “Honeywell no longer asserts that LED displays are a type of display that infringes the ’914 patent when used by the Government” (5/5/05 Honeywell Supp. to Claim Chart at 1, H 2.); Section II of the Claim Chart to clarify that “Honeywell no longer asserts that the Cockpit Engineer Display (CED) made by Smiths Industries for B-52H, the Warning Annunci-ator Panel (WAP) made by Litton Systems/Northrop Grumman for the C-17A, or the Engine/Caution Panel made by Litton Systems for the C-17A are covered by the ’914 patent when used by the Government in connection with NVIS” (Id. at 2, U 3.); and Section III of the Claim Chart to remove “the statement at page 9 referencing ‘Attachment B: claim chart showing how, on information and belief, ’914 claim 1 reads on full color, NVIS compatible, Light-Emitting Diode (LED) displays, when used with NVIS” ’ (Id. at H 4.). Honeywell appears to have withdrawn Attachment B to the Claim Chart. Id. On May 6, 2005, the Government filed a Motion for Leave to File the Declaration of Dr. Darrel G. Hopper (“5/5/05 Hooper Deck”).

On May 6, 2005, Honeywell filed a Reply in support of the April 20, 2005 Unopposed Motion to Supplement the Record Regarding Claim Construction. On May 9, 2005, the court granted the Government’s May 6, 2005 Unopposed Motion to File an Original Declaration of Dr. Darrel Hopper.

On May 13, 2005, the court granted Honeywell’s May 13, 2005 Unopposed Amended Complaint dismissing Counts I, II, III, and IV as they relate to U.S. Patent No. 6,142,637 .

On May 13, 2005, Honeywell filed a Motion to Preclude the Government “from making offensive use of certain documents belatedly produced in violation of the Court’s [First Amended Protective Order and Second Amended Protective Order],” together with the May 11, 2005 Affidavit of Mark Koehn and Exhibits 1-19 (PE1-PE159). On May 25, 2005, the Government filed a Brief in Opposition. On May 26, 2005, the court denied Honeywell’s May 13, 2005 Motion to Preclude. On May 31, 2005, Honeywell filed a Motion for Reconsideration.

On May 31, 2005, both the Government and Lockheed Martin filed an Answer to Honeywell’s Amended Complaint.

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction to adjudicate claims that allege “an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same ... [seeking] recovery of ... reasonable and entire compensation for such use and manufacture.” 28 U.S.C. § 1498 (a).

The United States Court of Federal Claims also has jurisdiction to adjudicate claims under the Invention Secrecy Act. See 35 U.S.C. § 181 . 8

*420 The Complaint and Amended Complaint in this action properly invoke the court’s jurisdiction under both of these federal statutes that authorize the award of monetary damages.

B. Standing.

1. Plaintiff.

Lower federal courts have been advised to “decide standing questions at the outset of a case. That order of decision (first jurisdiction then the merits) helps better to restrict the use of the federal courts to those adversarial disputes that Article III defines as the federal judiciary’s business.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 111 , 118 S.Ct. 1003 , 140 L.Ed.2d 210 (1998) (Breyer, J. concurring). The party invoking federal jurisdiction, has the burden of proof and persuasion to satisfy the constitutional requirements of Article III standing. See FW/ PBS, Inc. v. Dallas, 493 U.S. 215, 231 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990) (holding that the burden is on the party seeking to exercise jurisdiction by clearly alleging facts sufficient to establish jurisdiction).

Section 281 of Title 35 of the United States Code provides that “[a] patentee shall have remedy by civil action for infringement of his patent.” 35 U.S.C. § 281 ; see also 35 U.S.C. § 100 (d) (“The word ‘patentee’ includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.”); Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372 , 1376-77 (Fed.Cir.2000) (“Standing to sue for patent infringement derives from the Patent Act, ... 35 U.S.C. § 281 .”); Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304, 1308 (Fed.Cir. 2003) (emphasis in original) (“This court has determined that in order to assert standing for patent infringement, the plaintiff must demonstrate that it held enforceable title to the patent at the inception of the lawsuit.”). The standard set forth by the United States Supreme Court over a century ago fully retains its vitality. See Waterman v. Mackenzie, 138 U.S. 252, 260 , 11 S.Ct. 334 , 34 L.Ed. 923 (1891) (citations omitted) (“There can be no doubt that he is ‘the party interested, either as patentee, assignee, or grantee,’ and as such entitled to maintain an action at law to recover damages for an infringement; and it cannot have been the intention of congress that a suit in equity against an infringer to obtain an injunction and an account of profits, in which the court is authorized to award damages, when necessary to fully compensate the plaintiff, and has the same power to treble the damages as in an action at law, should not be brought by the same person.”).

Plaintiffs properly have alleged that, at the inception of the lawsuit and at the filing of the Amended Complaint on May 31, 2005, Honeywell Intellectual Properties Inc. was the owner of the ’269 patent application and ’914 patent and Honeywell International Inc. was an exclusive licensee of the ’269 patent application and ’914 patent.

*421 2. Intervenor.

The United States Court of Federal Claims “may summon any and all persons with legal capacity to be sued to appear as a party ... in any suit ... of any nature whatsoever pending in said court to assert and defend their interests[.]” 41 U.S.C. § 114 (b); see also RCFC 14(b) (“The court, ... may notify any person with legal capacity to sue and be sued and who is alleged to have an interest in the subject matter of any pending action.”); see also RCFC 24(a) (“Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”); RCFC 24(b) (“Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”).

The Complaint alleged that aircraft manufactured by Lockheed Martin for the Government incorporate technology disclosed and claimed in the ’269 patent application and ’914 patent. See Compl. UK 53-60, Ex. B; see also Am. Compl. 111124-28, Ex. B. Lockheed Martin initially filed a Motion to Intervene and the court subsequently granted Lockheed Martin’s Motion. Following the court’s January 26, 2005 Memorandum Opinion and Order, Lockheed Martin supplemented the record with three contracts that Lockheed Martin entered into with the Government, “all contain[ing] warranties that each aircraft provided by Lockheed Martin under the contracts ‘shall be free of rightful claim of infringement of any United States Patent.’ ” See 3/30/05 Lockheed Martin Motion to Supplement the Record at 2 (citing Ex. 1 (Contract No. F33657-95-C-2055) at 14 (C-130J System Commercial Warranty), Part A(e), p. 42 of 165; Ex. 2 (Contract No. F33657-00-C-0018), Attachment 1 at 14 (C-130J System Commercial Warranty), Part A, e., p. 50 of 65; Ex. 3 (Contract No. 33657-03-C-2014), Attachment 1 at 13 (C-130J System Commercial Warranty), b(5), p. 34 of 48). The remedy for a breach of these warranties by Lockheed Martin would be “‘reimbursement of the Government by [Lockheed Martin] of the amount of the Government’s loss, cost or damage ... arising out of such patent infringement.’” See 3/30/05 Lockheed Martin Motion to Supplement the Record at 3 and n.2. These contracts evidence that the disposition of this action may impair Lockheed Martin’s interests, unless it enjoys all the rights of a party, including the right to appeal. Therefore, the court has determined that Lockheed Martin has standing to intervene in this case pursuant to RCFC 24(a).

C. Controlling Appellate Precedent Concerning Construction Of Patent Claims.

The United States Supreme Court’s unanimous affirmance of the en banc decision of the United States Court of Appeals for the Federal Circuit in Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed.Cir.1995) (“Markman F), aff'd 517 U.S. 370 , 116 S.Ct. 1384 , 134 L.Ed.2d 577 (1996) (“Mark-man IF), settled that the meaning and scope of a patent’s claims are issues of law to be determined by a federal trial judge. Id. A strong undercurrent, if not undertow, concerned the competence of a jury to understand, must less construe, technical terms of art and functional elements of a patent’s claims. See Markman II, 517 U.S. at 384 , 116 S.Ct. 1384 (“We ... consider both the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation.”); see also id. at 388-89 , 116 S.Ct. 1384 (quoting Parker v. Hulme, 18 F. Cas. 1138, 1140 (E.D.Pa.1849) (“The judge, from ... training and discipline, is more likely to give a proper interpretation to such instruments than a jury; and ... is, therefore, more likely to be right, in performing such a duty, than a jury can be expected to be.”)).

*422 In Markman I, the United States Court of Appeals for the Federal Circuit specified three sources relevant to construe a patent’s claim: claim language; the specification; and prosecution history. See Markman I, 52 F.3d at 979 (quoting Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1561 (Fed.Cir.1991)) (“‘To ascertain the meaning of claims, we consider three sources: The claims, the specification, and the prosecution history.’ ”). It is important to recognize, however, that in Markman II the United States Supreme Court did not constrain a federal trial court from adjudicating the terms of a claim by excluding any relevant and reliable evidence, including that of experts. See Markman II, 517 U.S. at 390 , 116 S.Ct. 1384 (“The deci-sionmaker vested with the task of construing the patent is in the better position to ascertain whether an expert’s proposed definition fully comports with the specification and claims and so will preserve the patent’s internal coherence.”). Instead, that decision was entrusted to the considered judgment of the federal trial judge to determine, but following the precedent of the United States Court of Appeals for the Federal Circuit that was established to bring uniformity and doctrinal stability to the decisions of the federal judiciary on all matters concerning patent law. Id. (“It was just for the sake of such desirable uniformity that Congress created the Court of Appeals for the Federal Circuit as an exclusive appellate court for patent cases, H.R.Rep. No. 97-312, pp. 20-23 (1981), observing that increased uniformity would ‘strengthen the United States patent system in such a way as to foster technological growth and industrial innovation.’ Id. at 20.”).

1. A Federal Trial Judge Must First Attempt To Construe Ambiguous Claim Terms Utilizing Intrinsic Evidence.

a. Claim Language.

A federal trial judge examines claim terms and phrases “through the viewing glass of a person skilled in the art.” See Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed.Cir.2003); see also Hockerson-Halberstadt, Inc. v. Avia Group Int’l, Inc., 222 F.3d 951 , 955 (Fed.Cir. 2000) (“Claim language must be given ordinary and accustomed meaning, as understood by one of ordinary skill in the art,” at the time of the patent application.). In doing so, a federal trial judge in a patent infringement case must determine, as a threshold matter, whether there is ambiguity in any claim term requiring construction and, if so, to consider intrinsic evidence. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.1996). First, a federal trial judge must “look to the words of the claims themselves, both asserted and nonasserted, to define the scope of the patented invention.” Id. Second, “it is always necessary to review the specification to determine whether the inventor has used any terms in a manner inconsistent with their ordinary meaning. The specification acts as a dictionary when it expressly defines terms ... or by implication.” Id. Third, a federal trial judge may “consider the prosecution history of the patent, if in evidence.” Id. The United States Court of Appeals for the Federal Circuit has decided that intrinsic evidence is the “most significant source of the legally operative meaning of disputed claim language.” Id.; see also Phonometrics, Inc. v. Northern Telecom Inc., 133 F.3d 1459, 1464 (Fed.Cir.1998) (“Proper construction requires an examination of claim language, the written description, and, if introduced, the prosecution history.”).

b. Specification Explanation And Definition.

The United States Court of Appeals for the Federal Circuit recently reaffirmed that the specification is often the best tool to ascertain the “technological and temporal context” of claims. See Nazomi Communications, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1368 (Fed.Cir.2005) (citing Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1360 (Fed.Cir.2004)) (“In most cases, the best source for discerning ... [usage in context as understood by one skilled in the art at the time of the invention] is the patent specification wherein the patent applicant describes the invention.”).

If a patent’s claim language is ambiguous, the specification “including the inven *423 tors’ statutorily-required written description of the invention is the primary source for determining claim meaning.” Astrazeneca AB v. Mutual Pharm. Co., Inc., 384 F.3d 1333, 1336 (Fed.Cir.2004); see also id. at 1337 (quoting Autogiro Co. of Am. v. United States, 181 Ct.Cl. 55 , 384 F.2d 391, 397-98 (1967)) (‘“Most courts have simply stated that the specification is to be used to explain the claims’; ... the patent is an integrated document, with the claims ‘pointing out and distinctly claiming,’ 35 U.S.C. § 112 , the invention described in the rest of the specification and the goal of claim construction is to determine what an ordinary artisan would deem the invention claimed by the patent, taking the claims together with the rest of the specification.”). Of course, the utility of the specification depends on whether the “written description of the invention [is] ... clear and complete enough to enable those of ordinary skill in the art to make and use it.” Vitronics, 90 F.3d at 1582 .

The United States Court of Appeals for the Federal Circuit has held many times that “ ‘a patentee can act as his own lexicographer to specifically define terms of a claim contrary to their ordinary meaningt;]’ the written description in such a ease must clearly redefine a claim term ‘so as to put a reasonable competitor or one reasonably skilled in the art on notice that the patentee intended to so redefine that claim term.’” Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1307 (Fed.Cir.2000) (quoting Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed.Cir. 1999)); see also Georgia-Pacific Corp. v. United States Gypsum Co., 195 F.3d 1322, 1332 (Fed.Cir.1999) (citations omitted) (advising that the “specification of the patent in suit is the best guide to the meaning of a disputed term ... [and if] intrinsic evidence is unambiguous, it is improper for the court to rely on extrinsic evidence to contradict the meaning of the claims.”); ATD Corp. v. Lydall, Inc., 159 F.3d 534, 540 (Fed.Cir.1998) (citation omitted) (“When ‘the specification explains and defines a term used in the claims, without ambiguity or incompleteness, there is no need to search further for the meaning of the term’ ... [unless] such definition is challenged [then] it is often appropriate ... to receive evidence of the meaning and usage of terms of art from persons experienced in the field of the invention.”); Vi-tronics, 90 F.3d at 1582 (holding that, in ascertaining the scope of the patent, deference should be afforded claims, as defined by their “customary meaning,” with the caveat that the law affords patentees the right to serve as a “lexicographer,” if a special or unique definition is clearly stated in the specifications or prosecution history.). Federal trial judges also have been well advised not to construe a claim to exclude the preferred and only embodiment disclosed in a specification: “such an interpretation is rarely, if ever, correct[.]” Vitronics, 90 F.3d at 1583 .

In Chemcast Corp. v. Arco Industries Corp., 913 F.2d 923, 926-27 (Fed.Cir.1990), the United States Court of Appeals for the Federal Circuit also discussed the distinction between “enablement” and “best mode” requirements. 9 The specification discloses an invention “in such a manner as will enable one skilled in the art to make and utilize it.” Id. at 926 . The purpose of the “best mode,” however, is to restrain inventors from applying for patents and concealing from the public preferred embodiments of their inventions. Id. at 927 .

c. Prosecution History.

Federal trial judges also have been instructed that prosecution history is relevant to claim construction “because it may contain contemporaneous exchanges between the patent applicant and the [USPTO] about what the claim means.” Vitronics, 90 F.3d at 1584 . Prosecution history, however, can trump the importance of the specification in certain circumstances. For example, in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 , 86 S.Ct. 684 , 15 L.Ed.2d 545 (1966), the United States Supreme Court held that if claims were narrowed to obtain issuance over *424 prior art during prosecution, they may not later be interpreted by the specifications to cover what was disclaimed before the U.S. Patent Office. Id. at 33 , 86 S.Ct. 684 ; see also Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 220-21 , 61 S.Ct. 235 , 85 L.Ed. 132 (1940) (“When ... the patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in response to a rejection, he may not argue that the surrendered territory compromised unforeseen subject matter that should be deemed equivalent to the literal claims of the issued patent.”). In sum, prosecution history may preclude “a patentee from regaining through litigation, coverage of subject matter relinquished during prosecution of the application of the patent.” Wang Labs. v. Mitsubishi Electronics America, Inc., 103 F.3d 1571, 1577-78 (Fed.Cir.1997), cert denied, 522 U.S. 818 , 118 S.Ct. 69 , 139 L.Ed.2d 30 (1997).

2. Only In Limited Circumstances May A Federal Trial Judge Construe Claim Terms Utilizing Extrinsic Evidence.

If analysis of intrinsic evidence resolves ambiguity about the meaning of the patent claim, as a matter of law, it is improper for a federal trial judge to cite to extrinsic evidence, i.e., evidence outside of the patent record, including expert and inventor testimony, dictionaries, learned treatises, and articles. See Vitronics, 90 F.3d at 1584 (allowing extrinsic evidence “to help the court come to the proper understanding of the claims[,]” but not to contradict intrinsic evidence or vary the scope of the claims). That instruction was clarified in Key Pharm. v. Hercon Lab. Corp., 161 F.3d 709 (Fed.Cir. 1998):

This court has made strong cautionary statements on the proper use of extrinsic evidence, which might be misread by some members of the bar as restricting a trial court’s ability to hear such evidence. We intend no such thing. To the contrary, trial courts generally can hear expert testimony for background and education on the technology implicated by the presented claim construction issues, and trial courts have broad discretion in this regard.

Furthermore, a trial court is quite correct in hearing and relying on expert testimony on an ultimate claim construction question in eases in which the intrinsic evidence (i.e., the patent and its file history — the “patent record”) does not answer the question.

What is disapproved of is an attempt to use extrinsic evidence to arrive at a claim construction that is clearly at odds with the claim construction mandated by the claims themselves, the written description, and the prosecution history, in other words, with the written record of the patent.

Id. at 716 (citations omitted); see also Elekta Instrument, 214 F.3d at 1307 (quoting Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476 (Fed.Cir.1998)) (“[A] court should rely upon ‘the claim language, the written description portion of the specification, the prosecution history, and if necessary to aid the court’s understanding of the patent, extrinsic evidence.’”); Zodiac Pool Care, Inc. v. Hoffinger Indus., Inc., 206 F.3d 1408, 1414 (Fed.Cir.2000) (affirming a federal trial court’s claim construction and cautioning that “both intrinsic and extrinsic evidence [may be considered, however, a federal trial court should] turn[ ] to extrinsic evidence only when the intrinsic evidence is insufficient to establish the clear meaning of the asserted claim.”); Trilogy Communications, Inc. v. Times Fiber Communications, Inc., 109 F.3d 739, 744 (Fed.Cir.1997) (“When, as here, the district court has concluded that the patent specification and the prosecution history adequately elucidate the proper meaning of the claims, expert testimony is not necessary and certainly not crucial.”).

Extrinsic evidence, however, may be particularly useful to determine how one of ordinary skill in the relevant art would interpret the claim language. See Brookhill-Wilk 1, LLC, 334 F.3d at 1298 . For example, a federal trial judge should be able to consider extrinsic evidence to learn whether a common term has a special meaning in the relevant field. See Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1347 (Fed.Cir.2004) (en banc) (quoting Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.3d 1364, 1367 *425 (Fed.Cir.2003)) (“Claim language generally earries the ordinary meaning of the words in their normal usage in the field of invention.”),

a. Prior Art.

Depending on the clarity of a patent claim and specification, prior issued patents may provide a source of relevant evidence to determine how a term or phrase has been used or understood by one skilled in the art. That is true whether or not the prior art was referenced in the specification or the prosecution history. See Arthur A. Collins, Inc. v. Northern Telecom, Ltd., 216 F.3d 1042, 1044-45 (Fed.Cir.2000) (“When prior art that sheds light on the meaning of a term is cited by the patentee, it can have particular value as a guide to the proper construction of the term, because it may indicate not only the meaning of the term to persons skilled in the art, but also that the patentee intended to adopt that meaning.”); see also Vitronics, 90 F.3d at 1583 . Within the hierarchy of extrinsic evidence, prior art is a more reliable source of evidence as to the meaning of words or phrases in a patent claim than expert testimony. Id.

b. Technical Treatises And Technical Articles.

As with prior art, treatises and technical articles, particularly those of note, wide circulation, or likely to be utilized as standard desk reference material by an ordinary person skilled in the art at the time of the patent’s issuance may be consulted in the discretion of the court. See Dow Chemical Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1372 (Fed.Cir.2001) (“[Technical treatises, which are extrinsic evidence, hold a ‘special place’ and may sometimes be considered along with the intrinsic evidence when determining the ordinary meaning of claim terms.”); see also Vitronics, 90 F.3d at 1584 n. 6 (“Although technical treatises and dictionaries fall within the category of extrinsic evidence, as they do not form a part of an integrated patent document, they are worthy of special note. Judges are free to consult such resources at any time in order to better understand the underlying technology and may also rely on dictionary definitions when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents.”).

c. Expert Testimony.

The United States Court of Appeals for the Federal Circuit has instructed federal trial judges that expert testimony may be helpful in aiding an understanding of the patent, but not for the purpose of varying or contradicting the claims. See Markman I, 52 F.3d at 981 . The United States Court of Appeals for the Federal Circuit, however, has cautioned that expert testimony may be considered, but only insofar as it aids the trial court to understand the claim language, the specification, or the prosecution history. See Vitronics, 90 F.3d at 1584 (“Indeed, where the patent documents are unambiguous, expert testimony regarding the meaning of a claim is entitled to no weight.”); see also CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1318 (Fed. Cir.2000) (holding that when “the intrinsic evidence is unambiguous, it is improper for a [federal trial] court to rely on extrinsic evidence such as expert testimony when construing disputed claim limitations.”); but see Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed.Cir.1999) (“Vitronics does not prohibit courts from examining extrinsic evidence, even when the patent document is itself clear.”); see also id. (emphasizing that Vitronics “does not set forth any rules regarding the admissibility of expert testimony into evidence----[and] there are no prohibitions ... on courts hearing evidence from experts. Rather, Vitronics merely warned courts not to rely on extrinsic evidence in claim construction to contradict the meaning of claims discernible from thoughtful examination of the claims, the written description, and the prosecution history-the intrinsic evidence.”); Key Pharm., 161 F.3d at 716 (“[T]rial courts generally can hear expert testimony for background and education on the technology implicated by the presented claim construction issues, and trial courts have broad discretion in this regard.”).

*426 Federal trial courts also have been advised that “it is entirely appropriate, perhaps even preferable, for a court to consult trustworthy extrinsic evidence to ensure that the claim construction it is tending to from the patent file is not inconsistent with clearly expressed, plainly apposite, and widely held understandings in the pertinent technical field.” Pitney Bowes, 182 F.3d at 1309 . In that case, Circuit Judge Rader wrote “Additional Views,” joined by Circuit Judge Plager, to emphasize that Vitronics provides “good counsel when it urges trial judges to focus on the patent document — notably the claims themselves— to ascertain the scope of patent coverage.” Id. at 1314 . Federal trial judges, however, may turn to expert testimony to: “(1) supply a proper technological context to understand the claims (words often have meaning only in context), (2) explain the meaning of claim terms as understood by one of skill in the art (the ultimate standard for claim meaning), and (3) help the trial court understand the patent process itself (complex prosecution histories — not to mention specifications — are not familiar to most trial courts.”). Id. (citations omitted); see also Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 976-77 (Fed.Cir.1999) cer t. denied, 529 U.S. 1066 (2000) (reversing a federal trial court and stating that a court “may receive extrinsic evidence to educate itself about the invention and the relevant technology, but the court may not use extrinsic evidence to arrive at a claim construction that is clearly at odds with the construction mandated by the intrinsic evidence.”).

d. Scientific Or Industry Specific Dictionaries.

Although many post-Markman II decisions have attempted to clarify the permissible use of dictionaries to define words in a claim, the United States Court of Appeals for the Federal Circuit’s initial guidance in Markman I remains sound: “The district court’s claim construction, enlightened by such extrinsic evidence as may be helpful, is still based upon the patent and prosecution history.” Markman I, 52 F.3d at 981 ; see also Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1299 (Fed.Cir.1999) (“[The trial court should] not rely solely on a dictionary of general linguistic usage, but would understand the claims in light of the specification and the prior art, guided by the prosecution history and experience in the techno-logic field.”).

e. Inventor Testimony.

The United States Court of Appeals for the Federal Circuit appropriately has viewed post-issuance testimony by a patent’s inventor as subjective opinion about the meaning of claim terms that is entitled to little or no weight. See, e.g., Bell & Howell Document Mgmt. Prods. Co. v. Altek Sys., 132 F.3d 701, 706 (Fed.Cir.1997) (“The testimony of an inventor often is a self-serving, after-the-fact attempt to state what should have been part of his or her patent application.”); Engel Indus., Inc. v. Lockformer Co., 96 F.3d 1398, 1405 (Fed.Cir.1996) (“[The inventor’s] subjective intent is of little or no probative weight in determining the scope of the claims, except as documented in the prosecution history.”).

3. A Federal Trial Court Should Construe Claims To Preserve A Patent’s Validity Only Where All Other Tools Of Claim Construction Are Exhausted.

Where ambiguity remains after reviewing intrinsic evidence in construing patent claims, two doctrines have been employed to preserve the patent’s validity. The United States Court of Appeals for the Federal Circuit has advised federal trial judges that claims should be construed to preserve a patent’s validity, however, this presumption is applicable only “where the proposed claim construction is ‘practicable,’ ... based on sound claim construction principles, and does not revise or ignore the explicit language of the claims.” Generation II Orthotics Inc. v. Med. Tech. Inc., 263 F.3d 1356, 1365 (Fed. Cir.2001); see also Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 914 (Fed.Cir. 2004) (holding that “unless the court concludes, after applying all the available tools of claim construction that the claim is still ambiguous, the axiom regarding the construction to preserve the validity of the claim does not apply”). Likewise, the United *427 States Court of Appeals for the Federal Circuit has emphasized that the doctrine of claim differentiation is to be reserved only for those cases where neither intrinsic nor extrinsic evidence leads to a definite definition. See Hormone Research Foundation, Inc. v. Genentech, Inc., 904 F.2d 1558 , 1567 n. 15 (Fed.Cir.1990) (“[The doctrine of claim differentiation] although well established in our cases cannot overshadow the express and contrary intentions of the patent draftsman.”).

4. The Import Of Phillips v. AWH Corp., 376 F.3d 1382 (Fed.Cir.2004).

To the displeasure of the court, none of the parties initially recognized, much less discussed, the pending en banc consideration of Phillips v. AWH Corp., 363 F.3d 1207 , reh’g en banc granted, j. vacated, 376 F.3d 1382 (Fed.Cir.2004) (“Phillips”) in their pre-claim construction briefs. See Honeywell Int’l, Inc. v. United States, 65 Fed.Cl. 809, 810-11 , 2005 WL 1415441 (Jan. 26, 2005, amended and reissued June 14, 2005) (Memorandum Opinion and Order); see also TR at 8-13. In Phillips, the United States Court of Appeals for the Federal Circuit, sitting en banc, requested briefing and argument concerning seven core claim construction issues:

1. Is the public notice function of patent claims better served by referencing primarily to technical and general purpose dictionaries and similar sources to interpret a claim term or by looking primarily to the patentee’s use of the term in the specification? If both sources are to be consulted, in what order?

2. If dictionaries should serve as the primary source for claim interpretation, should the specification limit the full scope of claim language (as defined by the dictionaries) only when the patentee has acted as his own lexicographer or when the specification reflects a clear disclaimer of claim scope? If so, what language in the specification will satisfy those conditions? What use should be made of general as opposed to technical dictionaries? How does the concept of ordinary meaning apply if there are multiple dictionary definitions of the same term? If the dictionary provides multiple potentially applicable definitions for a term, is it appropriate to look to the specification to determine what definition or definitions should apply?

3. If the primary source for claim construction should be the specification, what use should made of dictionaries? Should the range of the ordinary meaning of claim language be limited to the scope of the invention disclosed in the specification, for example, when only a single embodiment is disclosed and no other indications of breadth are disclosed?

4. Instead of viewing the claim construction methodologies in the majority and dissent of the now-vacated panel decision as alternative, conflicting approaches, should the two approaches be treated as complementary methodologies such that there is a dual restriction on claim scope, and a pat-entee must satisfy both limiting methodologies in order to establish the claim coverage it seeks?

5. When, if ever, should claim language be narrowly construed for the sole purpose of avoiding invalidity under, e.g., 35 U.S.C. §§ 102 ,103, and 112?

6. What role should prosecution history and expert testimony by one of ordinary skill in the art play in determining the meaning of the disputed claim terms?

7. Consistent with the Supreme Court’s decision in Markman v. Westview Instruments, Inc., 517 U.S. 370 , 116 S.Ct. 1384 , 134 L.Ed.2d 577 (1996), and our en banc decision in Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed.Cir.1998), is it appropriate for this court to accord any deference to any aspect of trial court claim construction rulings? If so, on what aspects, in what circumstances, and to what extent?

Phillips, 376 F.3d at 1383 .

In post-claim construction hearing briefs, however, the parties rationalized their oversight by advising the court that the resolution of Phillips would not affect the claim construction in this case because the ’914 claims are not dependent upon dictionary definition, but rather can be resolved by the claim language or description of the ’914 *428 invention, as set forth in the specification and embodiments therein. See 4/1/05 Honeywell Brief at 9-10; see also 4/1/05 Gov’t Brief at 12.

The Government’s proposed construction of the term “red color band” in this case primarily relied on a dictionary definition. See 1/14/05 Def. Joint Brief at 30-33; 4/1/05 Gov’t Brief at 37; 4/15 Gov’t Brief at 21. In Phillips, however, the Government wherein argued that “[p]rimary reliance on dictionaries that are not part of the patent’s public record subordinates the patentee’s own explanation of his invention in favor of a dictionary definition never at issue during the patent prosecution before the USPTO.” 9/20/04 Brief for the United States as Amicus Curiae at 9, Phillips v. AWH Corp. The Government explained to the court that its proposed construction of the “red color band” was misstated and taken out of context by the court in light of the Government’s adherence to an “approach approved by the [United States Court of Appeals for the] Federal Circuit in cases such as Key Pharmaceuticals v. Hercon Laboratories Corp., 161 F.3d 709 (Fed.Cir.1998).” See 4/15/05 Gov’t Brief at 3. The Government also was quick to point out that Honeywell equally was culpable of relying on extrinsic evidence in its proposed construction of the terms: “display system,” see 12/23/04 Honeywell Brief at 9-11 (citing e.g., Webster’s; Ieee Dictionary; Dr. Task, TR at 31-32, 35; Mr. Tannas, TR at 34,129); “optical filter,” see also id. at 15-19 (citing, e.g., APPLIED. OPTICS; Mcgraw Hill; Mr. Tannas Initial Report (PMX 34 at U15); Mr. Tannas, TR at 168-71, 279-80, 351-52; Dr. Task, TR at 19, 31-32, 244-45, 247, 249-56); and “color band,” see also id. at 24-26 (citing e.g., Webster’s; Mcgraw Hill; Mr. Tannas Initial Report (PMX 34 at U 17); Mr. Tannas, TR at 183; Dr. Task’s Initial Report ( PMX 35 H127-28); Dr. Task, TR at 58, 63-65, 70-71,127-29).

Since the infringement and potential damage claims in this case are scheduled for trial on August 1, 2005, the court has decided to issue this claim construction Memorandum Opinion, reserving the right to amend these constructions prior to the issuance of a Final Judgment, in light of any subsequent appellate precedent, including Phillips, and any further evidence that may be adduced at trial.

D. Construction Of Certain Claims Of United States Patent No. 6,467,914.

At a January 31, 2005-February 4, 2005 claim construction hearing, initially the parties requested that seventeen claims of the ’914 patent be construed by the court. On April 14, 2005, the parties filed a Joint Stipulation to evidence their agreement of the meaning of six claims. Therefore, the court now is required only to construe the eleven claims that remain in dispute.

For each claim term or phrase at issue, the court has set forth the parties’ arguments before, during, and after the claim construction hearing to highlight those occasions where there was a shift, which sometimes was subtle and at other times stark. The court also has made liberal use of the transcript of the claim construction hearing to highlight the areas of the court’s inquiry and representations made by counsel therein and to underscore the court’s disposition of each word or phrase of a claim that was construed.

As a predicate to the following patent claim construction, the court has determined that one of ordinary skill in the art in 1985 would be knowledgeable about night vision compatible aids, compatible instrument and panel lighting, and manufacturing displays for military cockpits.

1. “Display System.”

Preamble language common to both Claim 1 and Claim 2 of the ’914 patent states that the invention is: “A display system for use in association with a light amplifying passive night vision aid and a local color display including a local source of light[.]” See ’914 patent, col. 5, 11. 31-33, col. 6, 11. 11-13 (emphasis added).

The parties have proposed the following competing constructions of “display system” and other claim language for the court’s consideration:

*429 [[Image here]]

See Honeywell Markman Slide 35; Gov’t Markman Slide 002 (bold added by parties).

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

Honeywell’s pre-hearing brief informed the court that no further construction of the language of the preambles common to both Claim 1 and Claim 2 was necessary. See 12/23/04 Honeywell Brief at 8. In the alternative, if the court decided to construe “display system,” Honeywell urged the court to consider the entire preamble, not just the first seven words. Id. In addition, Honeywell proffered that either a traditional or specialized dictionary definition supported the “ordinary meaning” of “system as a complex unity formed of often diverse parts,” which in this case includes, “a light amplifying passive night vision aid and a local color display including a local source of light.” Id. (emphasis added). Honeywell cautioned, however, that the “fact that the display system is recited as being for use in association with ... a local color display does not require that the display system be distinct from the local color display.” Id. at 16 (emphasis added).

Next, Honeywell turned to the specification and figures therein to support the proposition that the “filter(s) may be either in front of the local color display or within the display.” Id. at 10 (emphasis' added); see also id. at 10-11 (comparing ’914 patent,' figure 1 showing filter 23 in front of 17, the local color display, with ’914 patent, figure 3 showing filters 61, 62, and 63 within 37, the local color display).

*430 [[Image here]]

[[Image here]]

ii. At The Claim Construction Healing.

At the claim construction hearing, initially Honeywell requested the court construe only the words “display system.” TR at 126 (“I think perhaps on reflection the two terms, the two words that should be construed are ‘display system.’ ”). After further inquiry by the court, Honeywell decided to request construction of “display system,” as well as the remainder of the preamble language common to both Claims 1 and 2:

THE COURT: So you’re arguing that the words that now — you want to argue just about the words “display system” and not the rest?

*431 HONEYWELL’S COUNSEL: We are arguing ... in our position on the whole preamble, the word — we’re going to take display system first, and then address how it’s implicated in the balance of the preamble[.]

TR at 128 (emphasis added). Thereafter, Honeywell argued that “display system” means “the entire combination ... [rather than being] confined to the two components[.]” TR at 129. In that regard, Honeywell argued “[t]hat display has to be a local color display or the local source of light, and it’s got to have a night vision aid.” TR at 152.

iii. Post-Claim Construction Hearing Briefs.

During post-hearing briefing, Honeywell argued that “display system” should be construed in accord with the ordinary meaning of “a system that includes a display or display functionality.” 4/1/05 Honeywell Brief at 12 (emphasis added) and n.2 (citing Ieee Dictionary; PMX 28 at 264, 915; Lockheed PPT at 70-72); see also DMX 36 at D000087 (citing prosecution history where examiner construed “display system” to refer to a system having a “plurality of CRT’s”); PMX 44 at 5:35 (Miller, ’562 patent) (“display system” refers to “a system that includes a color CRT display and a contrast enhancement filter.”). At this juncture, however, Honeywell appeared no longer to be arguing that a “display system” included both a night vision aid and a local color display, but only a “display or display functionality.” Compare 12/23/04 Honeywell Brief at 8-9 with 4/1/05 Honeywell Brief at 12.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

The Government’s pre-hearing brief represented that the preamble language “establishes that this display system is comprised of two or more filters and not [the night vision goggles] and the local color display.” 1/14/05 Def. Joint Brief at 8-9 (citing Ex. 1 ’914 patent, col. 5, 11. 31-33 and col. 6, 11. 11-14). The Government also asserted that the ’914 patent specification supported its construction, because the “Background of the Invention” section of the specification provided that: “[t]he invention relates to electronic passive night vision aids and to a system for operating such night vision aids in conjunction with a local display such as a cockpit display.” Id. at 9-10 (emphasis added) referring to ’914 patent, col. 1, 11. 19-21. In addition, the “Summary of the Invention” section of the specification provided that: “In accordance with the present invention, an ANVIS aid, such as an ANVIS goggles set, is provided with an optical filter. A second optical filter blocking light in an opposite sense from the first optical filter is placed over displays, which may otherwise present light that would interfere with the AN-VIS.” ’914 patent, col. 2, 11. 11-15 (emphasis added).

The Government further advised the court that the prosecution history established that the original ’914 patent described an invention with “full color display which uses separate primary color light sources is made compatible with an ambient night vision (ANVIS) aid.” Ex. 7 ’914 Wrapper D0005. During prosecution, however, Honeywell distinguished the ’914 patent invention from prior art representing that: “In order to enable highly-sensitive night vision (ANVIS) goggles to be operated in an environment having full color displays, it is necessary to provide a technique to protect the ANVIS goggles .... The present invention accomplishes that by filtering the display light with optical filters and by providing an additional optical filter at the night vision aid.” Ex. No. 7 ’914 Wrapper D000109 (emphasis added).

ii. At The Claim Construction Hearing.

At the claim construction hearing, the Government stated that it was seeking construction of more than “display system,” but rather the phrase “display system for use in association with[.]” TR at 165.

GOVERNMENT’S COUNSEL: [T]he display system is clearly the noun .... I think the “for use in association with” defines a separate clause that is a description *432 of the intended use of the display system and nothing more.

THE COURT: Well, what do you do with the “including” phrase?

GOVERNMENT’S COUNSEL: Well, we believe that the “including” phrase, including a local source of light refers explicitly to the local color display. So the local color display includes a local source of light[.]' ... The specification makes very clear that the “including” phrase refers to the local color display, and not to the display system[.] ... Let’s go to the specification. ... It states that, and it uses the phrase “system.” “The invention relates to an electronic passive night vision aids and to a system for operating such night vision aids in conjunction with a local display, such as a cockpit display [’914 patent, col. 1,11. 19-21].” ... the system is something that brings them together[.]

TR at 169-172.

iii. Post-Claim Construction Hearing Briefs.

During post-hearing briefing, the Government conceded that “display system” means “two or more filters,” but that the “proper construction of ‘for use in association with’ ... shows that the display system, comprising two or more filters, is intended to be used in combination with a night vision aid and a local color display, but that these elements are not part of the claimed invention.” 4/1/05 Gov’t Brief at 13 (emphasis in original). The Government emphasized that the ’914 patent specification referred to “system” only once and in a way that supported the Government’s construction, ie., the “Technical Field” portion of “Background of the Invention” stated: “This invention relates to electronic passive night vision aids and to a system, for operating such night vision aids in conjunction with a local display such as a cockpit display.” DMX 1 (’914 patent, col. 1, 11. 19-21). Accordingly, the Government concluded that this phrase must mean that filters are the only required elements of the invention and that a night vision aid and a local color display are independent devices that operate in conjunction with the display system. See 4/1/05 Gov’t Brief at 15-16. The Government also urged that during the ’914 patent prosecution history, in response to the Examiner’s rejection for obviousness in light of USPTO No. 3,517,122 (Maass), Honeywell represented that the ’914 patent filters were for a different purpose than generating RBG color signals, i.e., Honeywell filters “provide a technique to protect the ANVIS goggles from the relatively high intensity light produced by the local cockpit displays. The present [’914 patent] invention accomplishes that by filtering the display light with optical filters.” 4/1/05 Gov’t Brief at 16 (citing DMX 7 at DE-328).

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

Lockheed Martin’s construction of “display system” was the same as that of the Government. See 1/14/05 Def. Joint Brief at 8-14.

ii. At The Claim Construction Hearing.

The court considered the following colloquy at the claim construction hearing relevant to the court’s decision to construe the entire preamble language common to Claim 1 and Claim 2.

LOCKHEED MARTIN’S COUNSEL: And it’s one of the reasons you can’t turn to a dictionary definition and say let’s take the dictionary definition of system, or let’s take the dictionary definition of system as modified by display. You really have to look to a definition of system as modified by display, and is modified by the phrase “for use in association with” a night vision goggle and a local color display, including a local source of light, and that’s the only way you can come to a definition, and it’s one of the reasons why you can’t rely on a dictionary here.

TR at 183.

% s¡« % >[: sj:

LOCKHEED MARTIN’S COUNSEL: [Honeywell’s counsel] in his initial brief indicated that the preamble did not need to be construed because it simply discussed the purpose, if you will, of the invention. I *433 believe he has moved away from the arguments from what I heard today, would indicate that he understands that the preamble does need to be construed[.]

TR at 184.

^ ^ ^ ^ ^

LOCKHEED MARTIN’S COUNSEL: Your Honor, we were discussing the preamble, and you can see from the prosecution history — ... the preamble was considered to be a limitation on the claim by Honeywell. Because it’s a limitation, it needs to be construed____ [W]e have an extract from the prosecution history where we deal with this issue of indefiniteness that we talked about before____ [T]he words “in association with” to be “in combination with.”

THE COURT: Well, this was the patent examiner who felt it was indefinite.

LOCKHEED MARTIN’S COUNSEL: Yes, this is the patent examiner finding that it was----[I]ndefiniteness is one of the first things you look for when you’re looking at patent issue, and here they found indefiniteness, and a change was made in the preamble to indicate that the — basically changed it so the preamble read “in combination with a night vision goggle and a local display, a display system comprising.”

TR at 186-87.

LOCKHEED MARTIN’S COUNSEL: Also, Honeywell tried to argue around the Patent Office’s prior art rejections, and successfully did it by claiming that its display system that was described in the body of the claim was distinct from prior art systems. That’s the type of thing that brings the preamble into play as a claim limitation.

TR at 188.

$ :¡c $ $ * $

LOCKHEED MARTIN’S COUNSEL: [T]he night vision aid and the local color display were essential limitations because, as the patent acknowledges, the claimed novelty of the invention is the combination of filters which make up the display system, with the night vision goggle, and the local color display, and the only reference to night vision goggles and local color display is found in the preamble. The preamble also needs to be — ... construed because the preamble is necessary to give life, meaning, and vitality to the claims.

TR at 189.

LOCKHEED MARTIN’S COUNSEL: So turning to the specification, there are two pieces of the specification that are relevant to the definition of the display system, and both of those are consistent with the definition that — ... in the specification that needs to be considered when looking at the definition of display system, and it is the statement in the specification that you find under the heading “Background of the Invention,” which states: “This invention relates to electronic passive night vision aids and to a system for operating such night vision aids in conjunction with a local display such as a cockpit display.” My point in quoting this is that this statement supports the interpretation that we have been discussing and it shows that there are three parts to this invention: night vision aids, a system for operating those aids, and local displays. So it is a night vision aid and a system that operates those night vision aids in conjunction with a local display such as a cockpit display____ [T]he summary of the invention in the 914 patent, and it provides that, and I quote: “In accordance with the present invention, an ANVIS aid such as an ANVIS goggle set is provided with an optical filter. A second optical filter blocking light in an opposite sense from the first optical filter is placed over the displays which may otherwise present light that would interfere with the ANVIS.” So again what we see here is we see a reference to the ANVIS aid in the night vision goggles, a local display, and the filters, each of them forming their own separate functions.

TR at 196-99.

sfc ifc s¡s sfc sfc

THE COURT: I’m not sure I read that that way in 44, because it says the present invention basically includes the goggles *434 that have a filter, and then there is a second optical filter blocking light in the opposite direction. I don’t read it the way you do. What am I missing?

LOCKHEED MARTIN’S COUNSEL: Well, it says you have with the present invention an ANVIS, such as goggles.

THE.COURT: Got it.

LOCKHEED MARTIN’S COUNSEL: Which is provided with an optical filter.

THE COURT: Got it.

LOCKHEED MARTIN’S COUNSEL: Which [are] going to be part of the system.

TR at 198-99.

5jC 5¡« ifc }|C J»;

LOCKHEED MARTIN’S COUNSEL: I am attempting to show that the display system is in fact separate from the local color display, and the night vision goggles, I have a couple more slides along those lines that I would like to show the Court. The first is slide No. 58, and in this slide Honeywell is arguing in response to an action from the Patent Office that its claimed display system was distinct from prior art display systems that were cited when the Patent Office rejected its complaints.

THE COURT: Remind me what year this was that the PTO had this rejection____

GOVERNMENT’S COUNSEL: It’s September 9, 1986, and I know we were referring to — I believe Lockheed is also referring to Bates Nos. D000108 to 109, I believe.

THE COURT: Okay. Now, I have on my chronology, see I just did my own little thing, November 13, 1989, I said PTO issued a notice of allowability, and they did that after this episode—

GOVERNMENT’S COUNSEL: Right, right.

THE COURT: —in response. Okay.

GOVERNMENT’S COUNSEL: That would be right.

LOCKHEED MARTIN’S COUNSEL: So in order to show that their claimed display system was distinct from prior art display systems they argued to the Patent Office. It says, “In order to enable highly sensitive night vision ANVIS goggles to be operated in an environment having full color displays, it is necessary to provide a technique to protect the ANVIS goggles from relatively high intensity light produced by the local cockpit displays.” And it goes on and states, “The present invention accomplishes that by filtering the display light with optical filters and providing an additional optical night vision aid. The filter for the night vision aid is adapted to block light from the preferred range of frequencies, thereby effectively blocking out light from the display.” So again what this tells us is there is a display, the display is generating light, and their invention says let us filter that light so that we can keep offending light from reaching the night vision goggles. If we turn to slide 59, and here we have — again this is from Exhibit 7, the 914 file history, and the Bates number here is D000110. Honeywell makes another statement to the Patent Office which shows that its display system is operationally separate from the local color display. Here it says, “It is respectfully submitted that the prior art neither shows nor suggests that a multiple monochromatic tube color display be provided with separate filters in order to provide enhanced filtration of multi-color displays.” So again what they are saying is is that their invention is to provide this enhanced filtration. This is the filtration that would filter out the offending light from reaching the night vision goggles.

THE COURT: I would read that that their enhancement would be the multiple monochromatic tube color display, which includes — no, no, no — which is provided together with, okay, separate displays, and it’s different than what you said.

LOCKHEED MARTIN’S COUNSEL: Well, I would say I was reading it. “Respectfully submit that the prior art neither shows nor suggests that a multiple monochromatic tube color display be provided with separate filters.”

THE COURT: What I am saying back to you is what they are saying is that the prior art didn’t talk about—

*435 LOCKHEED MARTIN’S COUNSEL: That’s correct.

THE COURT: —multiple monochromatic tube color display, but we are now. We meaning—

LOCKHEED MARTIN’S COUNSEL: I think if we read this whole thing in context, what I have done is extract something here, we see the whole contact saying—

THE COURT: Right.

LOCKHEED MARTIN’S COUNSEL: — that they were dealing with a piece of prior art that had multiple monochromatic displays, and in those monochromatic displays the displays were providing different colors, different primary colors that could be combined, and Honeywell tried to distinguish the prior art by saying, wait a minute, we’re not just providing multiple monochromatic displays, we are providing a special filter, separate filters, and those separate filters are to give enhanced filtration of multi-color displays in order to achieve the night vision compatibility goal of the invention.

THE. COURT: Let me go back and ask something that may be intuitive to you but not necessarily to me. Was the prior art basically tubes that they put filters on, but tubes that did something else, project the real color?

LOCKHEED MARTIN’S COUNSEL: That’s correct.

THE COURT: Okay.

LOCKHEED MARTIN’S COUNSEL: What the prior art was you had a prior art display which consisted of three monochromatic tubes, each generating a primary color, red, blue, and green.

THE COURT: Okay.

LOCKHEED MARTIN’S COUNSEL: And through the electronic signals that went into those tubes you can manipulate the intensity of the color.

THE COURT: And that was the way they wanted to address the issue of the redness?

LOCKHEED MARTIN’S COUNSEL: Right, and those three tubes together could give you a full color display____

TR at 208-13.

iii. Post-Claim Construction Hearing Briefs.

After the claim construction hearing, Lockheed Martin advised the court that one of ordinary skill in the ,art would construe the preamble phrase “display system for use in association with” to mean “two or more filters which are used in combination with a night vision aid, such as night vision goggles (‘NVG’), and a local color display, to make the color display compatible with the night vision aid.” 4/1/05 Int. Brief at 10. Lockheed Martin maintained that Honeywell “claimed only a filtering system that would render a full color display compatible with NVG.” Id. Stated another way, Lockheed Martin contended that Honeywell claimed only: “A (a display system) for use in association with B (a night vision aid) and C (a local color display), comprising: D (a first optical filter or a plurality of filters) and E (a second optical filter or a fourth optical filter).” Id. Honeywell did not claim: “A, comprising: B, C, D, and E.” Id.; see also 4/15/05 Int. Brief at 3-8.

In the court’s judgment, Lockheed Martin’s post claim construction hearing brief best described the dispute over the term “display system.” Lockheed Martin argued that Honeywell’s construction asserted that “display system consists of the entire cockpit.” 4/1/05 Int. Brief at 10. Stated differently, the filters in Honeywell’s display system “may make the local color display [not only] compatible with the NVG, [but also] producing red, green, and blue color bands generated by the three light sources that combine to make a full color image.” Id. Lockheed Martin argued that “nothing in the claims, the specification[,] or the file history indicate that Honeywell’s display system performed any role in the production of the color emitted by the display.” Id. at 11.

d. Specific Precedent Governing Construction Of A Patent’s Preamble.

The United States Court of Appeals for the Federal Circuit has instructed federal *436 trial courts that whether a preamble is treated as a limitation is determined “on the facts of each case in light of the claim as a whole and the invention described in the patent.” Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823 , 831 (Fed.Cir.2003); see also Corning Glass Works v. Sumitomo Elec. U.S.A., Inc. 868 F.2d 1251 , 1257 (Fed.Cir.1989) (reviewing the “entirety of the patent [is necessary] to gain an understanding of what the inventors actually invented and intended to encompass by the claim.”); Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620 (Fed.Cir.1995) (A claim preamble has the “import that the claim as a whole suggests for it. In other words, when the claim drafter chooses to use both the preamble and the body to define the subject matter of the claimed invention, the invention so defined, and not some other, is the one the patent protects.”).

Where the written description “consistently uses” specific terms to refer to the “invention as a whole, ... [the] preamble of each claim serves as a convenient label [or descriptive name] for the invention as a whole.” Storage Tech., 329 F.3d at 831 (citing IMS Tech., Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1434 (Fed.Cir.2000)) (merely giving a descriptive name to the claimed invention does not limit the scope of the claim). Where the preamble “defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention,” it is not limiting. See Rowe v. Dror, 112 F.3d 473, 478 (Fed.Cir.1997). On the other hand, where there is no “meaningful distinction to be drawn between the claim preamble and the rest of the claim, for only together do they comprise the ‘claim.’ ... [T]he preamble ... is said to constitute or explain a claim limitation.” Pitney Bowes, 182 F.3d at 1305 .

In addition, where claim language derives an antecedent basis from the preamble, it may be considered as a necessary component of the claimed invention. See Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed.Cir.2002) (quoting Pitney Bowes, 182 F.3d at 1305 ) (“In general, a preamble limits the invention if it recites essential structure or steps, or if it is ‘necessary to give life, meaning and vitality’ to the claim.”).

e. The Court’s Construction Of “A Display System For Use In Association With A Light Amplifying Passive Night Vision Aid And A Local Color Display, Including A Local Source Of Light, Comprising” In This Case.

In this case, the court has decided to construe all of the operative preamble language common to both Claim 1 and Claim 2 of the ’914 patent, i.e., “A display system for use in association with a light amplifying passive night vision aid and a local color display including a local source of light,” as necessary to understanding the ’914 patent and therefore as a limitation thereof. See Eaton Corp. v. Rockwell Int’l Corp., 323 F.3d 1332, 1339 (Fed.Cir.2003) (“When limitations in the body of the claim rely upon and derive antecedent basis from the preamble, then the preamble may act as a necessary component of the claimed invention.”).

The court begins with “system” in the aforementioned phrase modified by the adjective “display” to describe the general purpose or function of the system. The prepositional phrase “for use in connection with,” applies to two other nouns that are objects of this phrase, i.e., “aid” and “display.” “Light amplifying,” “passive” and “night vision” are adjectives modifying “aid.” Likewise, “local” and “color” are adjectives modifying “display,” when it is used as a noun. The placement of the terms “night vision aid” and “local color display” in the prepositional phrase prior to the verb “comprising” advised one of ordinary skill in the art that the claimed system may include or be used together or in combination with a “night vision aid” and a “local color display.” See ’914 patent, col. 5,11. 22-28.

From the use of the verb “comprising,” the court also construed the preamble language common to both Claims 1 and 2 as “presumptively open-ended,” i.e., encompassing display systems that include a first optical filter, as described, and a second optical filter, as described. See Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1371-72 (Fed.Cir. *437 2005) (Where a claim uses the “word ‘comprising’ transitioning from the preamble to the body [it] signals that the entire claim is presumptively open-ended____ Because the patentee invoked this open-ended treatment ... the scope of [the] claim ... encompasses all [display systems] satisfying the elements set forth in [each] claim.”); see also Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336 , 1347 (Fed. Cir.2001) (“When a patent claim uses the word ‘comprising’ as its transitional phrase, ... [it] creates a presumption that the body of the claim is open. In the parlance of patent law, use of[the] transitional phrase ‘comprising’ creates a presumption that the recited elements are only a part of the device, and that the claim does not exclude additional, unreeited elements.”); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir.1997) (“‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added.”); Manual of Patent Examining Procedure § 2111.03 (8th ed.2001) (“MPEP”). In addition, the court has determined that the ’914 patent optical filters are “essential elements” thereof and that a night vision aid and local color display may be included or used together or in combination with these filters. See ’914 patent, col. 5,1. 31. Claim 2 encompassed all display systems “comprising” a plurality of three filters, as described, and a fourth filter, as further described. See ’914 patent, col. 6,11. 12-28.

Therefore, the court construes the operative preamble language as follows:

A system comprised of optical filters that can be used in combination with an aid, with light amplifying, passive, and night vision qualities, and a display of colors that includes a source of light perceptible by the night vision aid.

See Pitney Bowes, 182 F.3d at 1306 (“If the claim preamble, when read in the context of the entire claim, recites limitations of the claim, or, if the claim preamble is ‘necessary to give life, meaning, and vitality’ to the claim, then the claim preamble should be construed as if in the balance of the claim.”).

Since the court has determined that the preamble language common to Claims I and 2 is unambiguous and not contradicted by the specification, the court rejects Honeywell’s entreaty that it consider extrinsic evidence to interpret this claim, including the Ieee Dictionary and the testimony of the experts. See, e.g., 12/23/04 Honeywell Brief at 9-11; 4/1/05 Honeywell Brief at 12; 4/15/05 Honeywell Brief at 1.

2. “Local” And “Color Display.”

The term “local color display” appears in the preamble to Claim 1: “A display system for use in association with ... local color display including[.]” ’914 patent, col. 5, 11. 31-32. The preamble to Claim 2 also utilizes the same language. See ’914 patent, col. 6, 11. 11-13. In addition, in Claim 1(a), the ’914 patent discusses “local color display” in the first two lines: “a first optical filter that filters light from the local color display[.]” ’914 patent, col. 6, 11. 1-2. Claim 2(a)(1) also discusses “local color display” as “a plurality of filters at the local color display[.]” ’914 patent, col. 6,1.15.

The parties have proposed the following competing constructions of the term “local color display:”

[[Image here]]

Honeywell Markman Slides 60, 68; Gov’t Markman Slide 008 (bold added by parties).

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

Honeywell’s pre-hearing brief requested a separate construction of the word “local” and the term “color display,” because “[t]he problem addressed by the ’914 patent is interference between a full color display and a night vision aid ... [and][s]ueh interference occurs *438 only when the full color display is operated in the vicinity of the night vision aid[,] ... [accordingly, the court was advised that] the most appropriate construction for local is located in the vicinity of the night vision aid.” See 12/23/04 Honeywell Brief at 11 (quoting ’914 patent, col. 2, 11. 1-3) (emphasis in original) (“[A] night vision aid such as AN-VIS goggles [is to] be operable while a full color display is presented in the vicinity of the goggles[.]”).

Honeywell criticized the Government’s proposed construction of “local, as incorporated in its construction of local color display, [because] [ffirst, in the context of the patent, local means in the vicinity of the night vision aid, not in the vicinity of an operator or observer.” Id. at 12 (emphasis in original) (citing Dr. Tannas). Second, the court was warned that the Government’s proposed construction “introduces an unnecessary and extraneous requirement, namely that the local color display be ‘within a defined area, such as a cockpit.’ Nothing in the language of the claims requires this limitation.” Id. (emphasis in original). Honeywell insisted that “[t]he claims are broad enough to encompass a local color display that is used in the vicinity of a night vision aid, but necessarily not in a defined area, such as a cockpit.” Id. (emphasis in original). Moreover, Honeywell cited the specification as instructing that “ ‘the present invention can be used by other viewers in association with environments other than an aircraft cockpit’ without placing any limitation on the type of environment in which the invention can be used.” Id. (citing ’914 patent, col. 2, 11. 49-59) (emphasis in original).

ii. At The Claim Construction Hearing.

At the claim construction hearing, Honeywell’s counsel pointed out that the term “local” appears “twice in the preamble, first, to modify color display, to make it a local color display, and second, to modify source of light, to make it a local source of light.” TR at 224. Honeywell’s counsel further explained:

HONEYWELL’S COUNSEL: The normal rule for claim terms is that the same term gets the same construction each time it appears in the claim. Therefore, Honeywell took the approach to define local for all purposes. The only exception to that rule is where the specification or elsewhere in the intrinsic evidence the patentee clearly indicated that the term should have a different meaning in different contexts, and because we didn’t see that in the claim, we defined local by itself to have the same meaning in each phrase. The Defendants, on the other hand, construed local color display and local source of light.... They say that local is in proximity to an operator or observer within a defined area such as a cockpit. But Honeywell’s position is local is simply located in the vicinity of the night vision aid.

THE COURT: Why does it make a difference to you?

HONEYWELL’S COUNSEL: I’m not sure why it makes a difference. We tried to define the term as we thought it — in accordance with the meaning given to it in the patent. Local does have a unique meaning in the patent. The whole patent is talking about the relationship between the light emitted from a display, and the night vision aid, and the light interferes with the night vision aid. The invention solves that problem. So local has the meaning of location, where are things located.

THE COURT: In relationship to something.

HONEYWELL’S COUNSEL: In relationship to something. I think the key here is the relationship between where the display is located in relation to the night vision aid. The operator, well, yes, the operator might be wearing night vision goggles, so that might be the same definition, but it might not in all cases. For example, if the display is located in the rear of the aircraft where there are no night vision goggles, but there is an operator viewing the display, then it wouldn’t make sense to define local for local color display as being near an operator because that is not what’s meant by the patent.

THE COURT: So if the operator is someplace totally different, then you don’t—

*439 HONEYWELL’S COUNSEL: That’s right.

THE COURT: Obviously your patent is not going to be relevant—

HONEYWELL’S COUNSEL: That’s right.

THE COURT: —to that fellow in the back seat.

HONEYWELL’S COUNSEL: Precisely. It’s just as simple as that. We tried to define it as we understood the patent. So the first issue is ... does local have a different meaning in those two phrases. Honeywell’s answer to that is no, it has the same meaning. The second issue is does local, is that in relation to the night vision aid or the operator or the observer? And Honeywell’s answer to that is it’s in relation to the night vision aid. And the third question is, is local limited to a defined area such as a cockpit? And we think the term is not so limited____ I don’t think Defendants have pointed to any place in the intrinsic evidence to indicate that the term should have a different meaning and a different—

THE COURT: But how does it harm you if I construe the language the way that the Defendant wishes to have it construed?

HONEYWELL’S COUNSEL: I think it’s — I’m not sure what they are trying to accomplish by “in proximity to an operator” or—

THE COURT: Well, ... I’m just asking you does it make any difference to you.

HONEYWELL’S COUNSEL: Not that I know of, but I don’t want to have it misconstrued because I don’t know what’s coming down the pike. And within a defined area though, such as a cockpit, I think that does harm us, because I don’t think the invention is limited to cockpit applications.

THE COURT: Give me an example.

HONEYWELL’S COUNSEL: An example would be — we gave the example later in our presentation of a foot soldier carrying a PDA and wearing night vision goggles, so there is light from the display.

THE COURT: All right, I need a PDA definition here.

HONEYWELL’S COUNSEL: Personal computer, like a palm pilot or—

THE COURT: Oh, okay, got it. All right. So he’s carrying a palm pilot with his goggles on.

HONEYWELL’S COUNSEL: Right, and he’s in a open area. There is no confined area such as a cockpit____Like a handheld GPS as an example, Your Honor.

THE COURT: Okay, so?

HONEYWELL’S COUNSEL: I mean, in this case we’re not aware of any such—

THE COURT: But that circumstance has nothing to do with your patent.

HONEYWELL’S COUNSEL: Well, as far as we know reading the claims, it would have something to do with the patent.

THE COURT: Why? You don’t have the two pieces that you’re looking for, the display system.

HONEYWELL’S COUNSEL: The display would be the PDA, the palm pilot with the screen that’s lite, and light coming out of that-display.

THE COURT: And you’re saying ... there is no filter on that, and there is nothing inside the machine that—

HONEYWELL’S COUNSEL: Well, you certainly could put the night vision filter concept in a PDA. There is nothing in the claim that says you couldn’t. Just because the example is given in the patent of a cockpit and a pilot—

THE COURT: That’s a much broader reading of display[.]

HONEYWELL’S COUNSEL: I don’t think—

THE COURT: The display was the box. I mean, I’m pretty sure that’s exactly the way you defined it. Here is the display.

HONEYWELL’S COUNSEL: We were talking about display system being—

THE COURT: Yes.

HONEYWELL’S COUNSEL: —a comprehensive system.

THE COURT: Right.

HONEYWELL’S COUNSEL: That included the display, and the night vision aid, and the filters. But the local color display is just that. It’s a color display. It has to *440 have more than one color. It has to display information to a viewer, and local places it in the vicinity of a night vision aid. But other than that the claim isn’t limited. It doesn’t say cockpit display. It isn’t necessarily an instrument that’s in an airplane.

THE COURT: Well, that went to ... my question about who was the person that’s skilled in the art.

HONEYWELL’S COUNSEL: Well, the history of the invention definitely goes back to aircraft and aviation.

THE COURT: I don’t have any trouble with that, but I guess I — I’m having difficulty foreseeing whatever claims you may want to assert that may not even be in this case that are broader.

HONEYWELL’S COUNSEL: But technology expands. Somebody invented the personal computer, but nowadays we put computers in everything from dishwashers to microwaves to television. They are all ubiquitous, but that doesn’t mean that the core invention of the computer isn’t in these various devices. If the claim doesn’t say cockpit, it’s not limited to a cockpit.

TR at 225-31.

THE COURT: [B]ut one does have some sense about when privilege is given up for a time period from the public to someone, what do they get for that period, and it cannot be the universe. It’s got to be something less than the universe, in my view.

HONEYWELL’S COUNSEL: Well, I think we’ve heard many times from opposing counsel the claims are king, and we agree with that principle, the claims are king.... And one of the concepts that comes out of Federal Circuit case law, the Rennashaw case, for example, stresses the importance that you have to find a word in the claim to define before you can engage in claim construction, and here we’re trying to engage in construing the claim “local.”

THE COURT: Yes.

HONEYWELL’S COUNSEL: And local certainly pertains to location, and where things are located in relationship to one another, but I don’t believe there is anything in the claim that limits the invention to a cockpit.

THE COURT: Okay.... My local was not in relation to cockpit, it was a relationship to the pilot itself. I mean, without the pilot there is no — none of the rest of this makes much difference.

HONEYWELL’S COUNSEL: But I think it does as Mr. Brafman’s example pointed out because the night vision aid could be hooked up remote to a remote viewer, and he could be viewing the area outside whatever confined area he happens to be in.

TR at 236-38; see also TR at 248.

í¡< 5-Í ❖ S}J

In addition, Honeywell objected to the Government’s proposed construction utilizing the words “visual” with “format,” “functional” with “device,” and “perceptible” with “col- or.”

HONEYWELL’S COUNSEL: So Honeywell's construction for color display alone is a device that provides visual representation of data using more than one color, and Defendants have modified that construction, and the portion of their construction that pertains to the color display is a functional device that presents information in a visual format in more than one perceptible color. So as you can see, there are not great differences between those two definitions. However, what Honeywell takes issue with is the addition of the words “functional” to modify “device,” and the addition of the word “perceptible” to modify the word “color.” We think those words are extraneous, and unnecessary to define what the claim terms.

THE COURT: How is perceptible extraneous?

HONEYWELL’S COUNSEL: We believe a color is inherently perceptible. Color pertains to human vision. Without the human there would be no color. The world doesn’t know color without the human, and the human visual system, and therefore perception .... We also rely on Dr. Task’s definition in his expert report and in his direct. The definition did not *441 change. He defined color as a display presenting more than one color. He did not believe it was necessary to insert the word “perceptible.” He did agree with it once Defendants adopted that, but he didn’t believe it was necessary when he first defined it.

THE COURT: And functional, you disagree with that because you think that’s redundant of device?

HONEYWELL’S COUNSEL: Right, a device—

THE COURT: Because a device is inherently functional?

HONEYWELL’S COUNSEL: —is inherently functional, right.

TR at 240-42.

iii. Post-Claim Construction Hearing Briefs.

During post-hearing briefing, Honeywell’s briefs appeared to abandon arguing that “local” required construction separate from “color display” and, instead, moved to focus on “whether the starting period for filtering is inside or outside the local color display.” 4/1/05 Honeywell Brief at 23. Here, Honeywell maintained that “[a]ll that is required is that you have ‘light from the local color display1 and a ‘first optical filter’ that filters such light[.]” Id. By shifting the argument to the location of the filters rather than construing the term “local color display,” Honeywell failed to provide the court with any meaningful guidance as to the meaning of “local color display,’’.other than to state: “in the case of the ’914 patent, there is clear disclosure of filters located inside the local color display.” Id. at 24 (emphasis in original). The court was advised, however, that “[s]uch filters filter light ‘from the local color display,’ even though the starting point for filtering is not external to the local color display, nor has the light left the local color display before it is filtered.” Id. In addition, Honeywell asserted that “nothing in the language of the claims or the written description permits the court to limit the scope of claim 1 to the Figure 1 embodiment, in which a first optical filter 23 is ‘located in front of local display 17.’ ” Id. at 25.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

The Government’s pre-hearing brief advised the court that one of ordinary skill in the art would conclude that the court should adopt the Government’s proposed construction that a “local color display” is a “functional device that presents information in a visual format!,]” a fact the Government represented that Honeywell does not contest. See 1/14/05 Def. Joint Brief at 15 (citing 12/23/04 Honeywell Brief at 12). In support, the Government cites the portion of the ’914 patent specification that instructed: “Figure 3 shows an arrangement in which the local source of light 50 comprises red 51, green 52, and blue 53 color bands sourced from the monochromatic display transducers.” ’914 patent, col. 4, 11. 40-48; but compare ’914 patent, col. 1, 11. 25-26 (“It is intended that the local display may be viewed either with or without the night vision aid in use.”) with id. 11. 42-48 (“A local color display ... is also viewable by the crewmember ... the local display is intended to be viewable without the aid of the ANVIS.”) with ’914 patent, col. 2, 1. 57 (emphasis added) (“The cockpit has several local displays such as color display [.]”)■ The prosecution history indicated that the “local color display” may be “a full color cathode ray tube display.” Ex. 7 ’914 Wrapper D000018, 11. 35-36; see also Ex. 8 ’760 Application D001179, 11. 29-30. In fact, Figure 3 of the specification depicts CRTs that provide “a monochromatic image ... for full color display, which appears on a front screen as a combined full color image.” Ex. 7 ’914 Wrapper D000010, 11. 8-11; see also Ex. 8 ’760 Application D001182, 11. 2-5.

*442 [[Image here]]

Therefore, the Government assured the court that “the proper reference point for ‘local’ ... is the observer.” 1/14/05 Def. Joint Brief at 15. But, the Government also argued that “ ‘local’ refers to the location, of the display within the cockpit such that it is visible with or without the use of ANVIS.” Id. (citing ’914 patent, col. 2,11. 46-48, 58-59; col. 1,11. 41 — 46) (emphasis added). The Government concluded that “one of ordinary skill in the art could understand that a local color display must be within a defined area for an operator or observer to view and to act upon, if necessary, the data and information produced by the local color display.” 1/14/05 Def. Joint Brief at 15 (emphasis added).

ii. At The Claim Construction Hearing.

At the claim construction hearing, the Government continued to argue that “local” means in reference to a human observer.

GOVERNMENT’S COUNSEL: The differences are for local, what the reference point for vicinity is, and for color display, the functional and the perceptible. And we don’t think that any of these terms are necessarily superfluous. We don’t think that they are wrong. With respect to local, we believe that the correct reference point is the observer. This is straight out of the patent specification, and specifically out of the specification where it states that the local color display, ... needs to be visible to a viewer. So for example, the first section I cited here, which is column 2, lines 46 through 48, says that “The local display is intended to be viewable without the aid of the ANVIS,” referring to, of course, as I spoke about before, the goggle sits in front of the eyes but not against the eyes so you can look around the goggles, so you can look down and see the display. The second provision is, “The cockpit has several local displays, such as a local color display, which are illuminated so as to be clearly visible without the use of ANVIS.” Again, it makes it clear that the observer is the one that’s going to be looking at the displays. So the reference point is again the observer. And finally, the last provision says, “It is important that the display indicators remain illuminated not only for the benefit of the crewmen who are not wearing night vision aids, but also because those using the goggles will typically view the instruments by looking under the goggles.” And again this just recognizes the point that the observer is going to be viewing the display without the goggle. So really what should be important is whether the viewer is local to the display and not the goggle, because if the viewer is not *443 local to the display, he can’t view it anyway.

TR at 243-44.

GOVERNMENT’S COUNSEL: [W]e believe Honeywell’s construction runs counter to the expressed purposes of the patent, which is to get a full color display which you can view without the goggles, and it doesn’t overwhelm you [sic] goggles. So you want to be able to look around your goggles and see a full color display. If it wasn’t important for the observer to be able to look at a display without the goggles and see color, then you wouldn’t have any reason to have this patent.

TR at 245.

sfc sf: ;Jc if: if: sf:

GOVERNMENT’S COUNSEL: We think it’s clear that local refers to a defined area. It doesn’t have to be a cockpit enclosure. It could be some other defined area. But we believe that local carries with it the implication that there is a defined area. The phrase from the patent that was recited, it’s column 2, lines 53 through 54, I believe, “The present invention can be used by other viewers in association with environments other than an aircraft cockpit.” We believe that phrase — that term “environment” also implies that there is a recognized environment. There is a recognized region around the observer and the display that local implies. So it’s a defined area, whether it’s an environment, whether it’s an enclosure, whether it’s a cockpit, but we believe that all of this comes out of the clear meaning of local. If the Court is satisfied, I’ll turn to perceptible in the color display. We don’t believe the perceptible before color is superfluous. The whole point is having a full color display meaning it has to show more than one color. If the colors are not perceptibly different, then it doesn’t look like a color display. It looks like a monochrome display. That’s the only reason ... perceptible is in there. It’s not superfluous, and it just shows that the colors need to be perceptibly different. And then finally, going back to the functional language, we don’t believe that is superfluous either. As we discussed before with respect to display system, the — I’m sorry — as related to the display system, the color display has to be functional apart from Honeywell’s proposed system. So saying it’s a functional device implies that it is functional on its own. It doesn’t require the patent to perform its function.

TR at 246 — 47.

iii. Post-Claim Construction Hearing Briefs.

The Government’s post-claim construction brief conceded that “local” means “in proximity to,” but that the display should be proximate to an observer or operator, despite the fact that Honeywell maintained that “local” means in proximity to the location of the night vision aid. See 4/1/05 Gov’t Brief at 20. Since the specification clearly indicated that local color display may be seen by a crew-member not wearing night vision goggles, the Government argues that Honeywell’s proposed construction is wrong. Id.; see also id. at 21 (citing ’914 patent, col. 1, 11. 41-46) (“[I]t is important that the display indicators remain illuminated, not only for the benefit of the crewmen who are not wearing night vision aids, but also because those using the goggles will typically view the instruments by looking under the goggles.”).

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

Lockheed Martin’s construction of “local color display” was the same as that of the Government. See 1/14/05 Def. Joint Brief at 14-16.

ii. At The Claim Construction Hearing.

At the claim construction hearing, Lockheed Martin disagreed with Honeywell’s explanation that “local is used differently when it’s referring to the local display and local source of light ... the ordinary, customary meaning of local source of light is that the local source of light must be part of the local *444 color display.” TR at 253. As for the specification, it teaches that the “original Figure 3 ... shows the local source of light as being integral to the local color display.” TR at 257. In sum, the claims and specification “lead to the conclusion that local source of light must mean that ... it is integral to and part of the local color display.” TR at 257.

iii. Post-Claim Construction Hearing Briefs.

After the claim construction hearing, Lockheed Martin advised the court that the “ ’914 patent’s claims do not expressly define the proper reference point for the local color display.... A review of the specification establishes, however, that the reference point for the ‘local’ is the observer and not simply the night vision aid.” 4/1/05 Int. Brief at 24. Subsequently, Lockheed Martin appeared to move to seek a construction of a different phrase, “light from the local color display.” 4/15/05 Int. Brief at 12. In that regard, Lockheed Martin argued that Claim 1 “applies to filters located outside of the [local color display] and Claim 2 applies to filters located inside the display.” Id. at 13.

d. The Court’s Construction Of “Local Color Display” In This Case.

The court has declined to construe the word “local” in the abstract. Construing an adjective without the object noun provides no guidance to the parties or the public as to how the court has determined the legal parameters of the ’914 patent subject matter.

i. In The Preambles To Claim 1 And Claim 2.

The court has determined that a “local color display” is a device that may be used together or in combination with optical filters, i.e., “a display system.” See ’914 patent, col. 5,1. 31; see also ’914 patent, col. 6,1. 13. In the preamble language common to Claims 1 and 2, a “local color display” is also one that shows or exhibits at least one color perceptible to an observer or observers who may be located near or in proximity to the “local display system.” Since a display system would be irrelevant without an observer or observers capable of perceiving the display, necessarily a “local color display” also must be perceptible to an observer or observers, i.e., one utilizing a night vision aid. Therefore, the court construes “local color display” as:

A device that may be used together or in combination with optical filters and shows or exhibits at least one color perceptible to an observer or observers utilizing a night vision aid.

This construction is not contradicted by the specification. See ’914 patent, col. 2, 11. 46-48 and 58-59 (emphasis added) (“as the local color display is intended to be viewable”)-, see also ’914 patent, col. 1, 11. 63-64 (“filtration of light according to wavelengths generally permits the use of full color displays”).

ii. In Claim 1(a).

Claim 1(a) describes “a first optical filter that filters light from the local color display.” ’914 patent, col. 6 11. 1-2 (emphasis added). The court does not construe this language to limit the location of the “fust optical filter” 23, described in Claim 1(a), to a location external to the “local color display.” Id. The “first optical filter,” whether located internal to or external to the “local color display” is included in the claimed invention. Id.

iii. In Claim 2(a).

In Claim 2(a), a “local color display” includes a source of light having blue, red and green color bands. See ’914 patent, col. 6,11. 13-14. Therefore, the court construes “local color display” in Claims 2 and 2(a) to include a source of light presenting at least one or more colors. See ’914 patent, col. 6,11.12,15. Similar to the “first optical filter” in Claim 1(a), the “plurality of filters at the local color display” is not limited to a location internal or external to the local color display. See ’914 patent, col. 6,11.15-22. The plurality of filters, whether located internal or external to the “local color display,” is included in the claimed invention. Id.

Since the court has determined that claim term “local color display” is unambiguous and not contradicted by the specification, the *445 court considers it unnecessary to consider any extrinsic testimony regarding the meaning of “local color display.”

3. “Local” And “Source of Light.”

The term “local source of light” appears in the preambles to Claim 1 and Claim 2 to describe part of the “local color display.” See ’914 patent, col. 5,1. 33; ’914 patent, col. 6,1.13.

The parties have proposed the following competing constructions of “local source of light:”

[[Image here]]

Honeywell Markman Slide 73; Gov’t Mark-man Slide 012 (bold added by parties).

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

Honeywell’s pre-hearing brief represented that “[t]he term light usually refers to electro-magnetic radiation in the visible spectrum.” 12/23/04 Honeywell Brief at 13 (citing Webster’s at 1308) (emphasis in original). In addition, Honeywell asserted that “it is clear that the source of light may also emit infrared radiation, i.e., longer wavelengths of electromagnetic radiation that are invisible.” 12/23/04 Honeywell Brief at 14 (emphasis in original) (citing ’914 patent, col. 1, 11. 38 — 40). The specification language cited by Honeywell, however, provides: “illumination from cockpit display sources overwhelms sensor elements which are used in such night vision aids, and thereby interrupts the night vision aid for up to several minutes.” ’914 patent, col. 1, 11. 37-40. The remainder of Honeywell’s pre-hearing brief weaved in extrinsic evidence, particularly that of Dr. Task, to persuade the court that “the claim states that the local color display includes the local source of light, [and therefore], it is superfluous to specify that it is integral with the display.” 12/23/04 Honeywell Brief at 14-15 (emphasis in original).

ii. At The Claim Construction Hearing.

At the claim construction hearing, Honeywell continued to argue that the “ordinary meaning of source of light does not require ... that it be an integral element of the local color display.” TR at 250-51.

HONEYWELL’S COUNSEL: So now I’ll go to source of light, and this again is in ■ the preamble, and Honeywell again has construed the term “source of light,” and Defendants have construed the entire phrase “local source of light.” And here the key difference between the parties’ proposed constructions is the requirements in Defendant’s construction that the local source of light be an integral element of the local color display.

TR at 250. '

THE COURT: Well, I would think the “local,” going back to your prior discussion, would be the focus for you.

HONEYWELL’S COUNSEL: But once again, there is no indication in the patent that the term “local” when it modifies color display has a different meaning from when it modifies source of light, and the principle is that when the same term is used in different places in the patent, it has to be given the same meaning, and I don’t believe Defendants have tied integral to local. They haven’t come out and construed local differently when it comes to local source of light. I think what they rely on is the term “includes,” but includes is not limited to a device that is integral. It has to include it. It has to be part of it, but it need not be integral. I don’t believe Defendants have pointed to anything in the claim language itself or the specification that requires that the source of light be integral with the local color display, so it’s a narrow difference.

TR at 251-52.

During rebuttal, Honeywell’s counsel argued:

*446 HONEYWELL’S COUNSEL: [T]hey say, “The ordinary and customary meaning of local source of light is the local source of light be part of the local color display.” And Honeywell agrees with that, and we would accept that as the construction. And then ... with Figure 3, first of all, to address the new matter argument, the examiner approved the amendment of Figure 3, and held it was not new matter, so I think that’s a red herring. Then we believe Defendants make irreconcilably different arguments with respect to these two figures. First, when they are talking about filter 61, 62, 63, they say those are functionally distinct from the local color display. But then when it comes to the local source of light, 51, 52, 53, they say those are integral with the local color display. We accept that both are integral. However, this is only one embodiment of the invention. The claims are not limited either to integral filters or integral source of [light]. But the Defendants’] arguments can’t be reconciled, and do not support reading the term “integral” into “local source of light” because this is only one embodiment of the invention.

TE at 258-59.

iii. Post-Claim Construction Hearing Briefs.

In post-claim construction hearing briefs, Honeywell reminded the court that Claim 1(a) does not require that “the starting point for filtering the source of light ... is the local color display.” 4/1/05 Honeywell Brief at 23. Instead, Honeywell argued that the claim is satisfied whether the “starting point for filtering is inside or outside the local color display. All that is required is that you have ‘light from the local color displajd and a ‘first optical filter’ that filters such light[J” Id. Figures 2 and 3 demonstrate that filters 61, 62, and 63 are located inside the local color display 37 filtering light “from the local color display.” Id. at 24. Therefore, Honeywell concluded that “nothing in the language of the claims or written description permits the court to limit the scope of Claim 1(a) to the Figure 1 embodiment, in which a first optical filter 23 is ‘located in front of the local display 17.’ ” Id. at 25 (citing ’914 patent, col. 3., 1.15); see also 4/15/05 Honeywell Brief at 8. In fact, Figures 2 and 3 show that the filtering is done within the local color display. See 4/1/05 Honeywell Brief at 24.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

The Government countered that one of ordinary skill in the art would conclude that the “local source of light is an integral part of the local color display----Honeywell’s [use] of the word ‘including,’ ... indicates that [Honeywell] intended for the local source of light to be part of, and not external to, the local color display[.]” 1/14/05 Def. Joint Brief at 17. The Government relied on two portions of the specification in support. Id. at 17 (citing ’914 patent, col. 3, 11. 9-10 (“it may be necessary to filter light from the local light source 50 of the display[.]”)); see also id. (citing ’914 patent, figure 3 (showing the local source of light 50 as being within the display)).

ii. At The Claim Construction Hearing.

At the claim construction hearing, the Government deferred to the argument of Lockheed Martin. See TR at 257, 11. 18-23.

iii. Post-Claim Construction Hearing Brief.

The Government’s initial post-hearing brief urged the court to construe “local source of light” to mean “the integral element of the local color display that provides the light that enables the display to be seen by the human eye.” 4/1/05 Gov’t Brief at 21. In doing so, the Government appeared to abandon prior reliance on specification requirements in column 3, 11. 9-10, and instead argued that “[the] proposed construction arises from the plain language of the claim: The preambles of both claims state that the local display includes — i.e., has an integral part — a local source of light nothing more is necessary[.]” 4/1/05 Gov’t Brief at 22. The Government also argued that Honeywell adopted the Government’s construction at the claim construe *447 tion hearing. Id. (citing TR at 258) (Honeywell’s Counsel: “The local source of light [must] be part of the local color display. Honeywell agrees with that, and we would accept that as the construction. We accept that both [the filters and local source of light] are integral.”).

c. Intervenor Lockheed Martin’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

In the pre-hearing brief, Lockheed Martin’s construction of “local source of light” was the same as that of the Government. See 1/14/05 Def. Joint Brief at 17-18.

ii. At The Claim Construction Hearing.

At the claim construction hearing, Lockheed Martin warned the court that:

LOCKHEED MARTIN’S COUNSEL: [T]he cases indicate look at words in context, look at the totality of the words to arrive at a meaning. And when you look at the totality ... here you are going to find that local is used differently when it’s referring to the local display and the local source of light. And we are focusing on the definition of “local” when we talk about local source of light____ [T]he ordinary, customary meaning of local source of light is that the local source of light must be part of the local color display.

TR at 253.

LOCKHEED MARTIN’S COUNSEL: If we turn to the specification, ... we see ... new Figure 3 on the right, new Figure 3, that is, is the Figure 3 that appears in the 914 patent as opposed to the original application. And we have the description that new Figure 3 shows an arrangement in which the local source of light comprises red, blue, and green color bands sourced from monochromatic display transducers such as the three cathoid ray tubes which are used to provide a color display. We heard earlier today from [Honeywell’s counsel] ... that the local source of light, that source of light was part of that display, was in that display. Certainly if we look to the original Figure 3 ... we find that the local source of light, which are the cathofde] ray tubes 51, 52, and 53. They are integral to or part of that local display. It’s important to look at this original figure because ... Tanden Corporation ... basically holds that amendments to a patent cannot change the disclosure in any way contrary to its substance as filed. So when the Court looks at the prosecution history, looks at the different drawings, what you have to do is consider them in light of the original application.

TR at 254-55.

iii. Post-Claim Construction Hearing Brief.

Lockheed Martin’s initial post-hearing brief represented that one of ordinary skill in the art would conclude that “local source of light” means “the integral element of the local color display that provides the light that enables the display to be seen by the human eye.” 4/1/05 Int. Brief at 26. The court also was advised that the specification does not show that Honeywell defined this term differently. See ’914 patent, col. 3, 11. 9-10 (“it may be necessary to filter light from the source 50 of the display[.]”). Lockheed Martin also made no further argument about the meaning of “local source of light.” See 4/15/05 Int. Brief at i.

d. The Court’s Construction Of “Local Source Of Light” In This Case.

For the reasons previously discussed, the court has declined to construe the word “local” in the abstract. Construing an adjective without the object noun provides no guidance to the parties or the public as to how the court has determined the legal parameters of the ’914 patent subject matter.

The court has determined, in the preamble language common to Claims 1 and 2, that “local source of light” as:

An essential element of the local color display that must be perceptible to an observer or observers with a night vision aid.

*448 This construction is not contradicted by the specification. See ’914 patent, col. 2, 11. 46-48; see also ’914 patent, col. 1, 11. 68-64.

4. “Optical Filter” And “Filter.”

The parties have agreed that the terms “optical filter” and “filter,” when used as nouns in the claims of the ’914 patent, mean “a device that selectively passes and blocks electromagnetic radiation.” 10 The parties agree that “filters” (plural), when used as a noun, means two or more filters.

5. “Filters” And “Filtering.”

The parties have agreed that the terms “filter” and “filtering,” when used as verbs in the claims of the ’914 patent, mean “selectively to allow (or allowing) light to pass and be blocked.” Jt. Stip. 112.

6. “Filters Light From The Local Col- or Display.”

In Claim 1(a), “a first optical filter” is described as one that “filters light from the local color display.” ’914 patent, col. 6,11. 1 and 2. No other claim recites this specific language.

The parties have proposed the following competing constructions of “filters light from the local color display”:

[[Image here]]

Honeywell Markman Slide 91; Gov’t Mark-man Slide 021 (bold added by parties).

a. Honeywell’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

In Honeywell’s pre-hearing brief, the court was advised that the proposed construction of “filters light from the local color display” is consistent with the plain meaning of the claim and specification and that nothing therein requires that the starting point for filtering the source of light occur at the “local color display.” See 12/23/04 Honeywell Brief at 19. The court was warned that it would be improper to limit Claim 1 to “embodiments wherein the optical filter is ‘located in front of the display or ‘is placed over displays.’ ” 12/23/04 Honeywell Brief at 20 (citing ’914 patent, col. 3,11. 15-16; see also ’914 patent, col. 2,1.13).

The specification’s use of the phrase “light ... from the local color display’ includes the embodiment of Figure 2 that shows local color display 37, without any filter in front of the display. Id. at 20. Honeywell also argued that Figure 3 shows “the same local color display 37 as shown in Figure 2, but in more detail.” Id. (citing ’914 patent, col. 4,11. 44-46). And, Figure 3 shows that “light from the local color display 37 is filtered by filters 61, 62, and 63, all of which are ‘part of and located within the local color display.’ ” Id. at 20. In addition, the specification described the filtering in Figure 3 uses the same language as Claim 1(a), i.e., “a filter 61, such as a band pass filter, may be used with CRT 51 so that any light within a narrow range of frequencies <fc may be transmitted from the local color display 37.” Id. (emphasis added) (citing ’914 patent, col. 4, 11. 49-57). Accordingly, Honeywell concluded that the specification is clear that filtering light from the local color display does not require an external filter in front of or over the local color display or that the starting point for filtering is the local color display. Id.

*449 ii. At The Claim Construction Hearing.

At the claim construction hearing, Honeywell reiterated that:

HONEYWELL’S COUNSEL: The plaintiffs primary position is that [this] term [“filters light from the local color display”] does not require any construction whatso-ever____If it does need to be construed, it has got to mean at least what we say .... So the plain meaning of the claim then is clear from its face and there is no reason to rewrite the English here, Your Honor. We have light from the local color display and we have a first optical filter that filters light and that’s exactly what the claim says. Nothing in the claim places that filter anywhere.

TR at 329; see also TR at 331.

iii. Post-Claim Construction Hearing Briefs.

After the claim construction hearing, Honeywell continued to argue that the phrase “filters light from the local color display” in Claim 1 does not require that the local color display be the “starting point” for filtering light. See 4/1/05 Honeywell Brief at 23. Instead, Honeywell advised the court that this claim only required that there be “light from the local display” and a “first optical filter” that filters that light. The starting point for filtering may be either inside or outside the local color display. Id. In support, Honeywell emphasized that Figure 2, showing a local color display at 37, and Figure 3, showing the filters at 61, 62, and 63 within the display, teach that they all filter light “from the local color display, the starting point for filtering is not external to the local color display and the light is filtered before it exits the local color display.” 4/1/05 Honeywell Brief at 23-24.

In addition, Honeywell disputed defendants’ dictionary definition of “from” to require that the first optical filter must filter light that has left the color display. See 4/15/05 Honeywell Brief at 8. Instead, Honeywell suggested that an alternative definition that designated the “source or origin” of light as the color display. Id. at 8-9. Honeywell also relied on specification language instructing that “a filter 61 ... may be used with CRT 51 so that only light with a narrow range of frequencies $ may be transmitted from the local color display 37.” Id. at 9 (citing ’914 patent, col. 4, 11. 54-57). In addition, Figure 3 teaches that the starting point of the color band is not the local color display, but filter 61 inside the local color display. Id. Therefore, Honeywell disputed defendant’s attempt to limit Claim 1 to Figure 1 since the phrase “from the local color display” is used to describe Figure 2 and Figure 3. Id.

b. The Government’s Proposed Construction.

i. Pre-Claim Construction Hearing Brief.

The Government, in its pre-claim hearing brief, conceded that the ’914 patent “indicates that some of the filters for its display system will be placed external to the local color display and thereby filter light from the local display.” 1/14/05 Def. Joint Brief at 24 (citing ’914 patent, col. 3, 11. 15-24) (“first optical filter is placed over displays”); see also ’914 patent, col. 2, 11. 10-15 (emphasis added) (“an [aviator’s night vision (“ANV”)] aid, such as [a] ... goggles set, is provided with an optical filter. A second optical filter blocking light in an opposite sense from the first optical filter is placed over displays, which may otherwise present light that would interfere with the ANVIS.”).

ii. At The Claim Construction Hearing.

At the claim construction hearing, the Government’s principal focus was the preposition “from” in the phrase: “filters light from the local color display.”

GOVERNMENT’S COUNSEL: We believe the claim term “from” does need to be construed. It provides structure and function to the claim. There is obviously a disagreement over what it means, so it is obviously ripe for construction____ First optical filter that filters light from the local color display. I don’t think that could be any clearer that the light has to be from the local color display before it is filtered. *450 It is the clear meaning, it is absolutely clear from the English grammar what we’re talking about here.

TR at 337-38.

% ifc ifc jfc

GOVERNMENT’S COUNSEL: [Honeywell] started talking about figure 3 and I think a couple misrepresentations were made and I want to clear that up. But first I want to just note that the specification uses this sort of the same way. It shows that filter can be placed over displays. [Honeywell’s counsel] spoke at length about figure 3 and how it shows things inside the displays. I don’t think that’s clear from the specification at all.... [I]t shows that there are filters at the display in figure 3, but ... figure 3 is even irrelevant to what we’re talking about here because ... we have figure 1, which actually [Honeywell’s counsel] started to try to put up in front of figure 3 when we started talking about this[.] Figure 1 is obviously what is being described by claim 1. There is no requirement that every claim read on every embodiment of the invention. Claim 1 can pertain to figure 1. Claims 2 and 3 could pertain to figures 2 and 3. There is nothing saying that claim 1 has to cover figure 3. So I don’t think that argument carries any weight at all. As you see from figui-e 1, there is clearly a filter on top of the display. The specification clearly says located in front of the local display, 17, is a first optical filter 23. That filter is on top of it, would filter light from the local color display. Again, as I mentioned before, Honeywell turns to figures 2 and 3 and which there is absolutely nothing in the patent tying claim 1 to figures 2 and 3. There is nothing in there that says figures 2 and 3 show a filter filtering light from the local color display.

TR at 339-40 (emphasis added).

ífc t'fi # 4*

GOVERNMENT’S COUNSEL: Claim 1 talks about something with two filters but also says the first filter filters light from the local color display. When we get to claims 2 and 3 we’re talking about a different embodiment. Now, that’s what figures 1, 2, and 3 show is different embodiments, different examples of the different embodiments. So figure 1, again, is relevant because it shows light being filtered from the local color display; whereas 2 and 3 don’t.

TR at 341.

sH :fc 'Jf. sfc # Hí

GOVERNMENT’S COUNSEL: And there is nothing in the specification that would tie claim 1 to figures 2 and 3, which plaintiff is trying to do. I don’t have much else to say on this. I think it is absolutely clear from the language, from the grammatical usage of the word “from” in the common, ordinary meaning of “from.”

TR at 342.

The Government also argued that it was not necessary to consult the specification because the clarity of the language at issue:

GOVERNMENT’S COUNSEL: The claims are clear. It says filters light from the local c

This text is long and has been trimmed here. Open the source document for the complete record.